CHAPTER 7 Competence
7.1 Assessing the competence of patients to give consent
[7.1.1] What is meant by ‘competence to consent to medical treatment’?
As chapter 6 makes clear, consent is the foundation for the therapeutic relationship between health professionals and their patients. The concept of consent is based on an assumption that the patient has the ability to hear, understand and process the information provided by the health professional. It also assumes that the patient is able to communicate their decision about what they would like the health professional to do. These two assumptions constitute an assumption about the patient’s competence or capacity (these terms can be used interchangeably).
The law of adult competence is discussed in this chapter. The law of competence and consent for children is discussed in chapter 9.
[7.1.2] Should I presume that an adult is competent?
Yes. At common law and under some statutes, adults (people over 18) are presumed to be competent, although it is possible to rebut the presumption by showing that an adult lacks competence. In some states the presumption of competence has been extended to people younger than 18: see chapter 9.
The presumption is reversed for children. Children are presumed to be incompetent unless they can prove otherwise: see chapter 9.
[7.1.3] What is the test for competence?
Most common law jurisdictions appear to have settled on a functional test of competence that requires the health professional to examine the ability of the particular patient to consent to the specific treatment being offered. The patient must be able to:
The functional test can be contrasted with a status-based approach, which would allow the health professional to make an assumption about the patient’s competence on the basis of their medical condition (for example, ‘all people with Down syndrome are incompetent’). It can also be contrasted with an outcome approach, where the health professional could judge the patient’s competence by looking at the reasonableness of their decision (for example, ‘no reasonable person would refuse a blood transfusion, so the patient is incompetent’).
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 concerned a patient in the Broadmoor Asylum who refused consent to having his gangrenous leg amputated. The doctors questioned his competence to make a decision about treatment, given that he was suffering from a mental illness. The judge defined capacity as a sufficient understanding of ‘the nature, purpose and effects of the proffered [treatment]’. The mechanics of understanding were split into three stages:
As the patient was able to complete these three steps he was found to have capacity, even though he was suffering from schizophrenia and the delusional belief that he was a doctor.
The functional test was also applied in the case of Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429, where a ventilator-dependent patient in an intensive care unit sought to refuse treatment and be allowed to die. Some of the patient’s doctors could not accept her decision because they feared that she was experiencing a ‘psychological regression’ brought on by her level of disability, her reaction to being totally dependent on others, her anger, and the effect of being in an intensive care unit rather than a specialist unit.
Stay updated, free articles. Join our Telegram channel
Full access? Get Clinical Tree
