Competency assessment of medical and psychiatric patients under Maryland's Health Care Decisions Act.

The Health Care Decisions Act provides consid­ erable flexibility and autonomy for patients regarding advance directives and surrogate decision making and clarifies how patients can tell their physicians and the world in general what they would like to have happen if they become incapable of making their own health care decisions. The law, however, is complex. This article provides help for physicians in interpreting some ofthe Act's clinical and legal ramifications. The Health Care Decisions Act, I which became law in Maryland in October 1993, clarifies what physicians should do if, on the basis ofclinical assessment, they judge a patient to be clinically incompetent. Under the Act, patients are considered incompetent if they are "incapable of making an informed decision about their own health care." Although teclmically competency is a legal tenn and only a judge can declare a patient legally incompetent, physicians frequently assess patients' capacity to make in­ fonned decisions about their health care. This capacity is often tenned clinical competencyor medical capacity. Inthe present discussion, the terms competence and competency are used to refer to clinical capacity as assessed by physicians, rather than to a legal status pronounced by a judge. Assessing competency All adult patients are presumed competent to make medical treatment decisions for themselves. Many patients who initially disagree with their physician's advice have appropriate concerns about the proposed treat­ ment. Time spent by the physician with the patient and family often results in agreement among the parties about what is best. Questions about competence usually arise in the clinical setting when the patient, physician, and family cannot agree on the best course of action. In this situation, the .,.;-~~,.. MarylandMedicalJoumal February 1995 • • physician's first responsibility is to clarify the nature of the problem, for it may not be one of competency at all. In the process of clarification, the physician should think clinically before thinking legally. Clinical thinking often re­ veals that what appears to be a problem in competency is actually a problem in communication (e.g., the patient orfamily does not understand the proposed treatment; thephysiciandoes not understand the patient's fears) or a problem in relationships (e.g., thephysicianhasslightedthepatient, whoseresponse isto :frustrate the physician's efforts; a disagreement between the patient and family hasmoretodo withpreexisting quarrels than with the patient's current medical situation). In most cases, membersof the treatment team are ableto recognize and address such issues; if resolution of the problem proves difficult, a consultation from the psychiatry service may be helpful. Even when it is clear that the patient's competence to make medical decisions is impaired, physicians should still think clinicallybeforethinking legally. This is important because the first question to be answered in the assessment of competence is, Competent to do what? The patient may well have the capacityto understand and decide about astraightforward, safe, minor treatment, but not a complex:, risky, major one. Judg­ ments about competence are therefore made in a context that includes not only the patient's mental state, but also the nature of the decision to be made. Once the assessment of competence is undertaken, a thor­ ough history and examination of the patient's mental state are required. The goal is to document phenomena (e.g., coma, delusions, hallucinations, dementia)thatmightaffectthepatient' s capacityto make the decision in question. A quantitative test of cognitive fimctioning (e.g., the Mini-Mental State Examina­ tion) should be part of the evaluation. Assessment of whether the patient has a factual understanding of the proposed treat­ ment, including its benefits, risks, and alternatives, is also important. Ifthe cliuicaljudgment is thatthepatienttruly lacks the capacity to make informed health care decisions, the physi­ cian has four choices. Options in the absence of competence Guardian or health care agent. First, if the patient has a previously appointed guardian or health care agent under an advance directive, thephysician should read the guardianship or advance directive document to see ifit allows the guardian or health care agent to consent in place ofthe incompetent patient. Consultation with an attorney is useful when the document is ambiguous. Wait until competency returns. Second, ifthe patient does not have a guardian or health care agent, the physician could choose to take no action until the patient returnsto competency. This approach is indicated when the proposed treatment is not urgent and the patientis suffering from a disorder (e.g., intoxi­ cation, delirium) that is expected to resolve. Intervention without informed consent. Third, in certain circumstances, the physician can intervene without in­ formed consent. The Health Care Decisions Act authorizes treatment without consent in a medical emergency if the attending physician determines that "there is a substantial risk of death or immediate serious harm to the patient and, within a reasonable degree of medical certainty, the life or health of the patient would be affected adversely by delaying treatment to obtain consent." This determination should be documented in the patient's chart using the language of the preceding sentence. Surrogate. Finally, a surrogate can be appointed for a patient who is clinically judged incapable of making an informed decision. Before using a surrogate decision maker, the attend­ ingphysician and a second physician, "one of whom shall have examined the patient within two hours of making certification, shall certify in writing that the patient is incapable of making an informed decisionregardingthe treatment." Although the two­ hour limit applies to only one physician, the other also must have personally examined the patient. Surrogate decision makers Thefollowingindividuals or groups, inorder of priority, may make surrogate decisions for a patient: ... a guardian, ifone has been appointed; ... the spouse; ... an adult child; ... a parent; ... an adult sibling; or ... another relative or friend who meets specific require­ ments (the Health Care Decisions Act requires that an affidavit be executed and in such circumstances, an attorney should be consulted). Individuals in a particular surrogate class may be consulted only ifall individuals in the next higher class are unavailable. Although surrogate decision making cannotbe used for steril­ ization or treatment of a psychiatric disorder, it can be used ifa psychiatric disorder causes the patient to be incapable of making an informed decision about the treatment of nonpsychiatric disorders. If surrogate decision makers dis­ agree aboutthe best course ofaction, or ifthe physician believes a surrogate is not acting responsibly, the case shouldbe referred to either the legal office or the psychiatric consultation service for further help.