Competency

SOUTHEAST TENNESSEE LEGAL SERVICES

Marion County, Tennessee and the Tennessee River (southeasttennessee.com)

Competency is a matter about which it is difficult for lawyers to give advice that will accomplish a client’s objectives without family controversy. In no small part, we rely upon the assistance of physicians. They in turn want to know what are the legal standards to guide them in giving opinions that their patients are competent or not. Here then is what the law tells us about competency:

	Capacity versus Competency
	The Sliding Scale Used in Law
	Competency to Make a Health Care Decision
	Signing an Advance Directive
	Consent to Medical Treatment for Cure or Rehabilitation
	Determining that Someone Else Must Make Medical Decisions
	A Patient’s Instructions about Life-Prolonging Treatment
	Threatened Suicide or a Request for Assisted Suicide
	Does the Patient Understand the Significant Benefits, Risks, and Alternatives?
	Can the Patient Make and Communicate a Health Care Decision?
	Applying Legal Standards in the Health Care Context
	Competency to Manage One’s Affairs
	Competency to Sign a Will

Capacity versus Competency

The concept of competency bears other names such as mental capacity and decision-making ability. For legal purposes, these terms are synonymous. Competency is the one generally employed by courts, particularly when it applies in a broad context such as finding someone unable to manage any of his or her financial affairs. Capacity is the term of most significance to medicine. The focus is often on the ability to make a particular kind of medical decision. Regardless of the name applied, the search is for the degree of mental acuity needed to sustain the actions of persons whose decision-making ability is in question.

The Sliding Scale Used in Law

There is no single legal standard of competency. Rather, the question is: for what purpose is competency to be determined? Even more importantly, the amount of necessary proof grows with the importance of the consequences attached to the question. Nonetheless, there are common elements to many definitions of competency and ways to resolve the dilemmas that occur at the end of life.

By contrast to most areas of law where competency is assessed, the situation in the field of health care is considerably more fluid. The legal standards are less firmly developed, and doctors rather than judges are the ones to apply them. We can safely assume that, every year, there are millions of people whose mental capacity is in doubt, and thousands of instances daily when they face medical decisions, but almost no legal proceedings concerning who may properly make those decisions and by what criteria.

The Uniform Health-Care Decisions Act has been adopted in seven states,[1] hardly an impressive total, but the statute is a clear explication and is consistent with the guiding principles in other fields of law. It is the work of legal practitioners and scholars. It provides a model whose goal is clarity and consistency more than reform. It defines capacity to mean the "ability to understand the significant benefits, risks, and alternatives to proposed health care, and to make and communicate a health care decision." In simplest terms, the requirements are two: understanding and the ability to communicate.

In assessing competency, we begin with the proposition that every person is presumed competent until determined otherwise. To say that there is a presumption of competency is to invoke the posture of a defendant in a lawsuit. He or she will win unless the plaintiff successfully offers enough proof to the contrary.

How much proof? There are three different measures. The more important the consequence, the higher the greater the amount of proof required. In most civil trials, a majority of the evidence, that is a preponderance , will be sufficient. In a few circumstances like civil proceedings for commitment to mental institutions, the standard is often higher. Clear and convincing proof is needed because a person’s liberty may be taken away. In a criminal case, the quantum of proof is greater still and must be beyond a reasonable doubt . The reason is that the consequences are the most severe known, and we better be as sure as we can that the matter is correctly decided.

With this background, we can now discuss competency in three settings, starting with competency to make a health care decision.

Competency to Make a Health Care Decision

Many medical situations are not easily resolved. They involve a spectrum of interactions between physician and patient. There are shades of gray in each. They present different circumstances and consequences. Here are a few of the more frequent situations:

	A person signs an advance directive.
	A patient’s consent is needed for medical treatment to cure or rehabilitate.
	A patient is barely conscious, if at all, and the question is whether someone else must make medical decisions for him or her.
	A patient, quite ill and perhaps near death, speaks or gestures ambiguously when asked whether life support is desired.
	A patient requests assistance in committing suicide or threatens to do so without assistance.

Signing an Advance Directive

When an advance directive is signed but competency is in question, powerful reasons are needed to overturn an individual’s decision, one that is favored by constitutional protection and extensive legislation. But there should be a distinction between the two types of advance directive – living wills and advance directives. This is an important point that is seldom discussed.

The mental capacity needed to nominate a health care representative is probably less than that required for a living will.[2] If contemplated as fully as the circumstances warrant, completion of a living will can be an arduous task. It entails discussions of matters like the meaning of a terminal illness, whether and when dementia is embraced by the document, and the medical significance of artificial food and water. A patient may want some life-prolonging treatments but not others. By contrast, it is relatively simple to place trust in another person to answer the difficult questions if decisions actually need to be made about life-prolonging treatment. That is what a health care representative is.

If we recall that a person is presumed competent until proven otherwise, the question is: what amount of proof is needed with either document to overcome this presumption. In the case of a health care power of attorney that designates a representative to make decisions, it should take a large amount – clear and convincing reasons – but only a preponderance of the evidence to overturn a living will. The reason again is that a living will, despite its usual brevity, presents misleading simplicity. It is notably more difficult than a health care power of attorney to discuss, process mentally, and complete.

Consent to Medical Treatment for Cure or Rehabilitation

Considerable acuity is needed when instructions are given regarding medical treatment. The doctrine of informed consent necessitates consideration of alternatives and the processing of much information about benefits and detriments. Patient autonomy means that more is necessary than a nod of the head in acceptance of a doctor’s recommendation. The patient should analyze then ask, question, and direct.

If a medical procedure has the risk and danger of, say, kidney surgery, the presumption of competency should be easily overcome. If the health care representative or surrogate is trustworthy, his or her judgment is likely to be sounder than that of the patient. Indeed, one should ratchet the legal hurdles upward, making it obligatory that the patient be found incompetent unless he or she clearly and convincingly can make decisions without assistance. Once again, the reason is that there is too much at stake to rely upon flawed decision-making ability.

Naturally, many treatment decisions will be of less moment than major surgery. It seems appropriate then for medicine to formulate a sliding scale for the necessary amount of mental acuity that is needed in a given situation. This, after all, is what happens in the courts. Effectively different measurements are made in ordinary civil trials, proceedings for commitment to a mental institution, and criminal trials. The severity of the consequences of a bad decision affects (but does not dictate) the conclusion about whether he or she had the ability to make it.

Determining that Someone Other than the Patient Must Make Medical Decisions

Understandably in these circumstances, doctors do not commit their findings to written form for use in legal proceedings. Their medical notes merely say that a patient is no longer able to make decisions. They may even omit such a statement if it is obvious that the patient is unconscious or otherwise unable to act. A doctor must say in some manner that the patient is incompetent, at least temporarily, thus triggering the use of an advance directive or decision-making by a surrogate.

Nothing happens of necessity at this point. Only later when the health care representative or surrogate makes a decision, or when at least one doctor concludes that a patient’s condition truly meets the medical conditions of the living will , can life support stop. As a result, it ought to be easy, and usually is, for a physician to say that the patient is unable to make decisions for himself or herself. By the same token, the doctor’s decision ought to stick unless it is clearly and convincingly wrong.

Incidentally, it is hard to imagine a challenge to the determination of competency at this time. If there is a fight, for example among family members, it is likely to occur for other reasons. Some may not like the fact that only one of them has authority to act. Some may take issue with the recommendations of the physician and the decisions of the health care representative . The trouble usually starts later.

A Patient’s Instructions about Life-Prolonging Treatment

The most difficult time for determining competency is when a patient is intermittently conscious and near death. Let us suppose that a patient has a ventilator for breathing and tubes for feeding, can hear, but cannot speak in a coherent way because of the breathing tube or another reason. It apparently is common for a patient to tear away the ventilator and feeding tubesat such a time.

It is a medical matter to determine the significance of these actions. Do they mean that a patient wants to terminate life support or, instead, that he or she is uncomfortable and wants relief from the physical discomfort of the devices keeping him alive? What if the physician asks a series of questions designed to elicit eye-blinking responses from the patient. Can the responses be considered as competently given? Once again, these are medical matters where law must provide guidance.

Our view is that the status quo, whatever it may be, should be maintained unless there is clear and convincing evidence that the patient is able to make decisions for himself or herself. In other words, if the patient has not signed an advance directive and there is no surrogate or guardian with authority to make decisions, the patient should be maintained on life support to the point where a doctor decides that he or she can no longer benefit from treatment. If there is a surrogate or guardian, his or her decisions must prevail over the ambiguous actions of the patient. If there is an advance directive, it too is of superior force, assuming again that the patient’s gestures do not give clear and convincing evidence to the contrary.

Again, the reason for maintaining the status quo is that the situation is generally too difficult for the best of physicians to make considered judgment about what the patient is communicating, much less whether he or she is competent to make decisions. There are no psychological tests to be performed. The patient’s responses are at a minimal level and capable of different interpretation.

Threatened Suicide or a Request for Assisted Suicide

Here the presumption of competency is only of momentary significance and should be overcome for the easiest of reasons. The existence of clinical depression and overpowering pain are likely. But help is usually available. Narcotics, for example, may overcome depression and pain.

In other words, the determination should be that the patient is incompetent unless powerful reasons to the contrary are found. Because of the possibility of premature death, the quantum of proof should rise to a high level -- clear and convincing evidence in legal terms – before the patient is again presumed to be capable of making decisions for himself or herself. This means that the physician then is in a position both to treat mental illness and pain, and to turn to someone other than the patient for decision-making of a sounder variety.

We now return to the two questions the physician must answer in all of these medical circumstances. They are:

Does the Patient Understand the Significant Benefits, Risks, and Alternatives to Health Care?

The concept of understanding requires some elaboration. It is one thing to receive and recapitulate information. It is another to assimilate and process knowledge for the purpose of making decisions. The reasoning tool must be at work even if the result of it is a decision that others may view as irrational. The beliefs of Christian Science form a logical body of thought which judges must respect concerning the medical treatment of adults whose competency is not in question. Similarly, when adults are making health care decisions of any type, doctors should recognize their viewpoints as competent expressions if they are accompanied by a measure of consistency or originality indicative of the reasoning process according to the sliding scale principle previously mentioned.

To illustrate the concept of understanding, consider the example of the person who mentally resides in the past except for the activities of daily life like eating and walking to another location in a nursing home. It may be possible for the person to recollect events and recount them, but not to discuss what might have occurred had things been done a little differently. Such a person may also be able to react to danger and avoid it. There is a kind of instinctual intelligence at work. In other respects, his or her life may be like that of a patron in a movie house who realizes that events are unfolding and may be able to describe them. Yet, he or she has no way to predict what might happen next and may not recall what has occurred before on the film. This is a person who does not possess enough of the reasoning process to constitute competency.

Can the Patient Make and Communicate a Health Care Decision?

It may be useful to visualize again a patient on a breathing machine who can express himself in only the most primitive way, by a nod of the head or the blink of an eye. The meaning of the nod or the blink may depend on the questioner, the tone of voice, the phrasing of the question, and other environmental factors. While they may be tools for communication, as opposed to involuntary responses, it is less certain that the patient is using them in the way the physician intends or understands.

In more typical cases, physicians will seek to determine from verbal communication whether there is a two-way exchange of information. This is more than yes-or-no responses by the patient to a series of questions by the doctor. The exchange should provoke a response in the physician: “My patient has made a decision, and I understand what it is.”

Applying Legal Standards in the Health Care Context

In the end, the physician alone must answer both of the questions designed to elicit whether the applicable standard of competency has been met. Psychological tests, machines that monitor the activities of the brain, and medications may lend credence to the examination of competency. They do not replace the analytical functions of the observer. Indeed, it would be ironic if those tools for measuring understanding and communication were themselves unassimilated and unprocessed except in a mechanical fashion by the observer.

How should the physician proceed as observer? A physician and a psychologist have suggested admirable methods.[3] They are paraphrased here, making them applicable to a host of other situations as well.

When the interview begins, the physician states that a medical or legal situation is at hand and describes its character and significance. He or she recites that patient is being asked to make a choice among alternatives, each with risks and benefits that the physician describes.

Then the physician asks: do you have any questions? Using a checklist based upon legal standards as well as the particular matter to be decided, the physician also asks questions of the patient. The patient’s questions and responses are significant here. They indicate appreciation or the lack of it. They are the communication that is to be assessed as well as the patient’s understanding.

The presence of family members and friends is probably more a help than a hindrance. They may assist in interpreting seemingly ambiguous responses. They may be needed to give reassurance. They can be of special importance when cultural differences exist between the physician and patient. But they may also seek to influence the examiner’s questions and conclusions or the patient’s responses.

It may not be possible to conclude an interview on a single occasion. Fatigue, medications, or recent unpleasantness in the life of the patient may interfere.

Intermittent competency is a related problem. Legal lore describes the "lucid moment" when an otherwise incompetent person has the temporary but legally recognized ability to enunciate wishes and dispose of property by will. A similar concept is the "sundown syndrome" known to medicine. It relates to the improvement of mental ability during the day and the waning of it in the evening. However described, there must exist a valid medical basis for believing that a person can have intervals of clarity of thought and expression. More to the point, lucidity is not believable unless it is repeated. Then the existence of the period of competency can be substantiated, and its brevity becomes unimportant.

What if the patient does not cooperate? It could be due to anger, resignation, emotional exhaustion, confusion, or a number of other reasons short of true inability to decide. It may be possible in some situations for a physician to make a determination of competency in emergencies on the basis of his or her knowledge of the patient and the statements of family members and friends. But what if they are unavailable or unsure, and time is short? The legal presumption that every person is competent until determined otherwise is only a starting point for the physician. He or she should then seek to determine whether the patient’s mannerisms and, more importantly, physical condition offer any convincing evidence of mental ability.

To illustrate, the serene countenance of an 85-year old person who is conscious but silent may be a statement of unwillingness to be treated. If content with fate, why wouldn’t the patient give a suitable response to requests for guidance about treatment? A physician should usually conclude that the patient’s refusal to cooperate is actually an inability to do so. Ergo, the patient is not competent, and someone else must make a decision for him or her.

In the final analysis, the physician’s conclusion must be an intelligent speculation about what a judge would decide if the matter were before a court. Asking for guidance from a lawyer about legal standards is appropriate, even though legal proceedings are unlikely and unwanted. Seldom will a patient be clearly competent or incompetent. Courts do not look for average or normal behavior, only mental capacity that is not substantially apart from the norm. The initial objective is to respect the person’s right to decide for himself or herself as much as is possible. A second and simultaneous aim is to protect the patient from bad decisions made without a proper basis for them.[4]

Competency to Manage One’s Affairs

In guardianship proceedings, the question is whether someone, usually a family member, should be appointed to manage the personal and financial affairs of a person who allegedly no longer has the ability to do so. In them, judges make determinations that have great potential for harm. They can take away a fundamental freedom of an individual. They are guided by vague legal standards that embrace one or more of the following concepts:

	The person has a disabling condition such as mental illness, mental deficiency, or chemical dependency.
	The condition endangers his or her health or safety.
	The person lacks sufficient understanding or ability to make or communicate decisions.
	He or she cannot manage his or her property.

If not careful, judges can go astray without proper evidence of the medical significance of an older person’s behavior and without legal safeguards like attorneys to present evidence in his or her behalf.[5] Fortunately, state judges and legislatures are increasingly creating protections such as a meaningful right to counsel; strict compliance with principles of fairness in hearings; and the use of investigators and professionals to assess the appropriateness of guardianship.

These safeguards are enough to discourage most frivolous guardianship petitions. In others, we will have to depend upon carefully drawn medical opinions about what a person cannot do and skeptical judges who are reluctant to take away the liberties of an older person.

Competency to Sign a Will

Litigation about competency has long occurred in the law of wills, and its rules are simple. Two witnesses are needed to testify that a person who knew what she was doing and voluntarily signed the document. Because of the witnessing requirements, will contests are comparatively rare.

The degree of competency required to sign a will is the ability to understand three things: the nature and extent of one's property, the persons who are the “natural objects” of one’s bounty, and the disposition of property made in the document.[6] These tests are less imposing as a practical matter than their wording.

The first test -- the ability to understand the nature and extent of one's property – means little. It calls for general knowledge about the differences between types of property – real estate and securities, for examples – rather than the particular features of each. It has more to do with the size and value of assets than their legal characteristics. Indeed, there is much misunderstanding by clearly competent persons about probate versus non-probate property, and joint tenancies versus tenancies in common.

The second test – that the person knew the natural objects of his or her bounty – is largely irrelevant. The lawsuits tend to arise when children are disinherited, usually without mention in the document. A rare will disinherits but does not specifically mention that a child is receiving a lesser or no share for a reason that is personal to the testator. Even when there is no statement, the fact that children or other “natural objects” are excluded from benefits does not belie capacity. It means only that a court may require a stronger showing of competency if they are omitted.

The third test – knowledge of the disposition made in the will – also has less importance than might be imagined. Most lawyers make a conscious effort to explain the meaning and significance of the words that they have written in a will or related document to be signed by a client. Many clients still fail to understand the words or their meaning after the explanation. But this generally does not matter. Knowledge of the general effect of a will is sufficient, rather than an understanding of the terminology used.[7]

As we have discussed above regarding the law in other contexts, the ability to communicate is the other element of competency. In the case of a will, the document itself is the form of communication. Only rarely is it so odd -- or so clearly expressed in the testator’s own words -- that it witnesses the incoherence or the clarity of the person who signed it.

Thus, the law of wills makes it difficult to overturn a document that has been signed and properly witnessed. The presumption of competency thrives and is not easily overturned, even though only a preponderance of evidence is generally needed to do so.

[1] Alabama, California, Delaware, Hawaii, Maine, Mississippi, and New Mexico.

[2] Molloy, D. William, Silberfeld, Michel, Darzins, Peteris, Guyatt, Gordon H., Singer, Peter A., Rush, Bonnie and others. Measuring Capacity to Complete an Advance Directive. Journal of the American Geriatric Society 44:660, 1996.

[3] Appelbaum, Paul S. and Grisso, Thomas. Assessing Patients’ Capacities to Consent to Treatment. New England Journal of Medicine 319: 126, 1988.

[4] Appelbaum and Grisso.

[5] In re Tyrrell , 92 Ohio L. Abs. 253 (P. Ct. Preble Co. 1962); In re Colson , Law Docket No. LAW-WAL-93-349 (Me. 1993).

[6] Wills § 71, 79 Am. Jur. 2d 329, 1975 (Supp. 2000).

[7] Shulman v. Shulman, 193 A.2d 525 (Conn. 1963).

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