Adults are considered competent to perform any social function unless specifically determined by a court to be not competent to perform that specific function.1 In the situation of medical, and specifically psychiatric, treatment mental health professionals have lhc responsibility of making the initial assessment of their patients' capacity to make treatment decisions. The person will be brought into the judicial process for a final determination of competency to make treatment decisions only if referred by the clinician.
In order to make this initial assessment the clinician requires a clinically relevant assessment model or standard thai will define a treatment decision-making capacity threshold. If the patient's decisionmaking capacity rises above the threshold as set by the model the person would be considered competent and he would not be involved in the judicial process. If the person appears to fall below the clinically defined capacity threshold, the person should be involved in the appropriate judicial/administrative process (which varies in each state) for a determination of competence to make treatment decisions.
In this article it wilt be demonstrated that from ethical, legal, and clinical perspectives, the patient's ability to form a therapeutic alliance with the clinician provides a useful tool to set a treatment decision-making capacity threshold.2 The model enables the therapist to arrive at a satisfactory balance between clinical treatment, patient autonomy, and judicially-mandated due process imperatives. Case examples will underscore how the clinician should go about utilizing this clinical model and what may be represented to a court in those cases where the patient is clinically considered to lack treatment decision-making capacity.
Two general approaches in ethics are most often applied to the assessment of competence."5 The deontologie approach asserts that the final decision will necessarily be the "best" one if each step taken toward the final decision is the "best" one. The person's competence to perform a certain task is assessed by judging the process the person uses to arrive at the final decision. Inherent in this model of competence evaluation is the need to make judgments about the "rationality," "goodness," "Tightness," advisability, or "normalness" of the person's decisionmaking process. The deontological approach requires the evaluator to decide if the person's decisions fall within some standard for "good thinking." Regardless of how humane or wise the evaluator, it will be necessary for the evalualor utilizing the deontologie model of competence assessment to make numerous arbitrary judgments based on what the evaluator perceives to be proper or desirable.
Alternatively, a utilitarian approach is often utilized to assess a person's capacity to make treatment decisions. This approach asserts that the correct final decision is the one which will allow for the "best" outcome. Il is not at all clear in ethics or law if the "best outcome" should be from the perspective of the person, society, the person's family, or a hypothetical normal person. As in the deontologie approach, the utilitarian approach requires the evaluator to make judgments (in this case, as to what constitutes the best outcome for the person) based on the evaluators idiosyncratic perspectives.4
Proposed models for treatment decision-making capacity assessment that are purportedly clinically based depend on one or a combination of the ethical approaches noted above. These extant models have the clinician assess treatment decisionmaking capacity by considering, in order of increasing rigor, if the patient evidences a choice; whether or not the decision leads to a "reasonable choice": the patient's understanding or ability to understand; or if the decision is based on "rational reasons."5,11 Increasing the rigor of the standard applied for the assessment of' treatment decision-making capacity as the presumed seriousness of the decision's ramilicaiions increases according to some arbitrary scale is the ultimate expression of the utilitarian approach.7 It magnifies the clinician's need to make arbitrary judgments and will make it more difficult for a person todo what they want simply because society considers the ramifications of the decision to be serious. This sliding scale approach will allow courts, "advocates," families, and well meaning clinicians to intrude in a patient's private health care decisions in order to protect the person from making a "seriously wrong" decision. Society should not use the process of treatment competence determination as a covert means of control particularly when such control does not result in an appreciable benefit to society or the individual.8
Legal writings on the assessment of competence are not generally helpful for the clinician faced with making the initial decisions on which patients should be brought into the judicial process for a determination of treatment decision-making competence. Often the standard for competence is "defined" as the person having the "clear capacity" to do a certain function or for the person to demonstrate an ability to engage in a "rational" process. 5-q These standards may be adequate for use by a judge in a court because, as a society, we generally accept the judicial process as a method for making decisions that are actually unknowable. Vague, value-laden definitions can be accommodated because society expects the court to be capricious under the guise of impartiality. However, the clinician requires a standard that can be applied in a more objective manner.
LACKS OF MODELS
After this decidedly brief excursion through the existing ethical, legal, and clinical models relating to the assessment of competence to make treatment decisions, one notices a definite lack of models that might be used by the clinician to determine the initial treatment decision-making capacity threshold. However, the weaknesses of the approaches discussed do allow one to define the ethical, legal, and clinical foundation for a uselul model.
It would be ideal to have a treatment decision-making capacity model rest on an ethical foundation that eliminates the need for the cvaluator to make value-laden judgments about the person's decision-making process or outcome. The ethical basis of the ideal model would be that the "rightfulness" of the person's treatment decisions must be examined from the patient's perspective. The only ethical approach that is acceptable in this type of evaluation is to allow the person to express their health belief system.10 This system is composed of the personal, cultural, and social values that govern how each person views his health status and determines in what ways he will solve his health problems. This ethical perspective would define the threshold of treatment decision-making capacity to be the patient's ability to identify a health need or problem and to consider the possible goals and strategies available to resolve the problem.
The legal foundation of the ideal model for determining a person's treatment decision-making capacity would be derived from the ethical foundation explained above. Indeed, in a number of recent court decisions the ethical foundation of giving fullest possible expression to the individual's desire is evident.11"11 A "right to be wrong" has even been identified in this context." A new model of treatment decision-making assessment should rest on an additional principle that is firmly established in law. Il Js recognized by the courts that a crucial standard for assessing a person's capacity Iu participate in his/her own delense (stand trial) is that person's ability to consult (ally and work with) an attorney. The courts consider a defendant competent to stand trial if he can form a relationship with an attorney and work on the problems of the trial proceedings. If this standard satisfies the judicial need to assure the competence of a defendant in a criminal proceeding, considering the grave consequences that result from the trial process (guilt, incarceration), then it follows that a similar standard should satisfy the judicial need to assure the competence of a patient making treatment decisions. Il follows from this observation that a second element lor the legal foundation of an ideal model for the clinical assessment o! treatment decision-making capacity is to assure that the patient is able to consult (ally and work with) a clinician in the treatment process.
The clinical foundation lor an ideal model of treatment decisionmaking capacity should be deeply embedded in the doctor-patient relationship. Studies examining the elements necessary (ora successful doctor-patient encounter consistently describe the patient's perception of the doctor as a competent, caring. communicative person as being most important. It is in the context of this caring relationship (hat treatment occurs. Whether the person is consulting a behavioral therapist, a psychopharmacologist. a dermatologist, an outpatient psychoanalyst, or an inpatient psychiatrist, treatment can not occur unless there is an alliance between the care giver and care taker.15·10 A patient who feels his/ her psychiatrist is aloof, disinterested, uncaring, and uncommunicative will not be engaged in treatment and is more likely to sue for malpractice. Indeed, patients may well have cause for action because they should expect and receive some form of doctor-patient relationship based on respect, communication, and caring.
This relationship will allow the palieni to trust the psychiatrist to the degree the patient sees fit. Some people want to find a relationship where they feel comfortable enough lo permit the psychiatrist tu proceed using the psychiatrist's "best judgment." patients will want tu know fact, and will actively read and assess each slepof the care Perhaps each psychiatrist tolerate each type ? G patient. psychiatrist then has the obligation to recognize that a meaningful to relationship cannot patient. be formed because of a poor personmatch with the psychiatrist, In such a case, the psychiatrist should not consider this inability to form a working relationship to be due (o a deficit in the patient.
An assessment model that rests squarely on the legal, ethical, and clinical foundations developed above is the ability of the patient to form a therapeutic alliance. The therapeutic alliance stems from the patient-doctor relationship as described in relation to psychoIt is generally defined as the interactive process between the patient and therapist (hat develops i rom the patient's need or desire to solve a health problem and the therapist's desire (need) to assist the patient G? this endeavor.''' Therapy could not occur until this therapeutic alliance is established.
The meaning o I the therapeutic alliance has broadened to encompass most every doctor- patient therapeutic encounter. 'b·'? The precise combination of real relationship and working alliance making up any therapeutic alliance will vary depending on the type o I therapy or treatment. It is clear the relationship between the patient and psychoanalyst is in some ways similar to, but in many ways different from, the relationship necessary to complete a successful psychopharmacologic consultation. At the base of both these relationships is (he tacit and explicit agieemenls between the two parties involved that the doctor is going to try to work with and help the patient. The nature of the "work" and "help" will vary, but the need for a rela(ionship (o form before those activities can occur is a constant.
The formation of the therapeutic alliance, iust like the treatment decision-making capacity of a patient. depends on the patient, the caregiver, the palient-caregiver relationship, and the environment."' UnIy when the clinician can reasonably assure that the inability to form an alliance is not due to the other elements will the failure be ascribed to some characteristic of the patient. This will require the clinician to approach the assessment of a patient's ability to form a therapeutic alliance, and thus the patient's ability to make treatment decisions, as a process.'^ It will not do to approach a person iusi admitted to an unfamiliar state hospital by emergency commitment statute in the ward hallway and attempt to decide the issue of treatment decision capacity or ability to form an alliance. It will be necessary to meet the person a number of times, over perhaps two days or more, in interview settings appropriate to the person's particular needs.
The initial treatment alliance with an acutely agitated patient is formed around the need to reduce the agitation and assure the safety of the patient and others in the environment, '!'here are exceptions, but usually even a markedly agitated patient experiences, and can acknowledge, the agitation as uncomfortable and agree to the need to utilize methods (time-out, one-to-one monitoring, psychopharmacologic agents) (o assist them to regain control. Certainly the alliance necessary to do this is different than the type of alliance necessary (o engage in interpersonal skills building: the nature of the alliance will change as treatment progresses.
It may be that the patient is not able to form a trusting relationship with a particular clinician on the basis of some personality differences. This should not he taken us an indication that the patient lacks the ability to form a therapeutic, alliance. In this (ype of situation, the clinician should refer the patient to the care of another appropriate professional. If (he patient is not able (o work with a variety of professionals, there is strong reason to expect an alliance cannot be formed because of some characteristic of the patient.
Through this process, the clinician will be able to assess the patient's ability to identify a health care problem and discuss the relevant strategies and goals. The person may decide on a course that is contrary to what the clinician considers to be the "best" decision. A patient should not be considered unable to form an alliance or lacking in sufficient treatment decision-making capacity simply because the patient does not decide to engage in the strategies or goals of treatment preferred by (he clinician. The clinician must understand that the reason for the encounter with (he patient is not for the clinician to be able to assert his/her desires, benevolent or otherwise, on the patient. The professional's role is to assist the person to identify the person's health care problems, strategies, and goals. Refusing t rea imeni is a viable alternative. A good alliance is characterized by the patient's ability to question and disagree with the professional.
It is also important for the clinician to allow the patient to trust the clinician Io the exlent to which (he person desires to do so. Each person has a different need to trust the clinician to guide the therapy. Some patients want to know everything (even those things (hat are really unknowable) and some want to know comparatively little, even if it would be "good' for them to know more. Unquestioning acceptance of the professional's ministrations should be explored as a possible indication thai a good alliance does not exist. The patient should be able to discuss the option of allowing the clinician to guide the therapy to a more than "usual" extent. If the patient decides to do this, an outline of the pros and cons of lhe decision that were discussed should be documented in the patient's record.
At this point, it is appropriate to consider some specific clinical issues in utilizing the ability of a patient to form a therapeutic alliance as a model and standard for the clinical assessment of treatment decisionmaking capacity. Utilizing the formation of the alliance as a model does not require a person to agree to a specific diagnostic label, or even that he or she has a "mental illness" or "psychiatric disorder." It is after all. not necessary for a person with a growth in their lung to acknowledge the diagnostic label of "cancer. "The person must have only enough insight to realize there is a significant problem thai requires attention.
Because the main purpose of the therapeutic alliance is to allow the professional Io work with the patient to identify the problems, strategics, and goals of treatment, it follows that denial on the part of the patient will render it impossible to form an alliance.19 In such an instance, the clinician would conclude that the patient falls below the threshold for treatment decision-making capacity and bring the patient into the judicial process for a final determination of competence. On review, the court may decide that the person is not denying there is a problem, but is really making a competent decision to refuse treatment. In this way, utilizing the therapeutic alliance will lend to minimize treatment of people who arc really not competent (that is. there will be few ialse positive determinations of competence).
There arc other examples of how patients' cognitive and affective processes impair their ability to form an alliance despite the best efforts of a number of professionals attempting to engage the person over a period of time. Such processes may include intellectual deficits as seen in dementia, overwhelming anxiety or paranoia seen in thought disorders, helplessness and hopelessness of depression, or rage and projection exhibited by a patient with borderline personality disorder. Observing for the patient's ability to forman alliance allows the clinician to assess the infinite combinations of cognitive and affective strengths and weaknesses displayed by patients. In each instance where an appropriate alliance cannot be formed (ostensibly due to some characteristic of the patient) the clinician would conclude that there is a clinical basis to doubt the patient has sufficient treatment decision-making capacity to express his or her health belief system and therefore bring the person into the judicial process for a final determination of treatment competence. In this way, the therapeutic alliance, as a model for the clinical determination of a treatment decision-making threshold, effectively preserves the patient's autonomy. The use of this model in specific case situations is examined in the Case Reports.
The therapeutic alliance is useful as an assessment model for determining a patient's capacity to make treatment decisions because it is based on a firm foundation of ethical, legal, and clinical principles. Using a clinical model to set a threshold for the decision to bring cases to the attention of a court or administrative body enables the therapist to arrive at a satisfactory balance between clinical treatment, patient autonomy, and judicial due process imperatives while allowing lhe therapist to avoid using subjective, arbitrary, and judgmental standards. In this way, it releases the therapist from the burden of making impossible legal or ethical decisions concerning the patient's capacity.
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13. Rivers v Kau, Opinion 191, New York State Court of Appeals. 1-14, June 10. 1986.
14. Duskv JP United Slates. 362 DS 402. 80 SCt, 788.
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