The next set of case studies, in which three patients with varying degrees of injury and different prognoses are described, is designed to raise the question of the role of the severity of the patient’s injury in the determination of his competence.
A 50-year-old alcoholic, disheveled, acutely intoxicated man is brought to the emergency department by paramedics after a fall.
He has a one-inch cut on his left hand, but there is no obvious nerve or artery damage, and he can move his hand normally. The patient refuses to have the hand sutured.
He contends that he does not want any needles and does not care about the scar that the cut will leave. He demands to leave the emergency department.
A 50-year-old alcoholic, disheveled, acutely intoxicated man is brought in after a fall. He has a three-inch laceration in his midforehead.
This patient also refuses to be sutured. He says he is afraid of needles and does not care about the scar. He demands to leave.
A 50-year-old alcoholic, disheveled, acutely intoxicated man is brought in after having been stabbed in the abdomen. The patient refuses any diagnostic studies and demands to leave.
He says he feels fine and is able to walk. His vital signs are within normal limits. Is he competent to make the decision to refuse treatment? If he did not have alcohol on his breath, would he be competent to make that decision?
This series of three cases raises some of the most fundamental and frequently encountered issues in emergency care. The most obvious value conflict here is between respect for the patient’s self-determination and concern for his well-being.
Respect for patient self-determination is the basis of the moral and legal right to refuse or accept treatment, even lifesaving treatment.
This right, however, is restricted to competent patients and is further limited by the need to protect those other than the patient from harm (thus even a competent patient’s refusal of treatment for a communicable disease may be overridden).
The threshold question in all three of these cases, therefore, is that of competence. If the patient is competent, there is, at the very least, an extremely strong presumption that he is to be allowed to refuse treatment (unless doing so puts others at risk).
If he is not competent, treating him thwarts his desire to avoid treatment; but it does not infringe a right of self-determination, since he lacks the prerequisite for such a right, namely, competence.
DETERMINATION OF COMPETENCE
Except in cases of severe brain damage, such as coma or profound retardation, competence is not an all-or-nothing affair.
Instead, competence is competence for doing something. One is not competent or incompetent as such but rather is competent to do this or that.
Competence as a threshold requirement for the right to accept or reject medical treatment is competence of a particular sort: the capacity to make decisions. Decisionmaking capacity is clearly decision-relative.
One may be competent to make some rather simple or relatively trivial decisions but incompetent to make more complex or more momentous decisions.
All of us recognize the decision-relative nature of competence as decision-making capacity in our dealings with children.
You may think that your four-year-old is competent to decide whether to order a hot dog, a hamburger, or fried chicken at a restaurant, but you do not think that he is competent to make large-scale financial investment decisions.
The legal requirement of informed consent is the formal vehicle by which we recognize the competent person’s right of self-determination with respect to medical treatment.
This requirement has two main exceptions. First, as we have seen, needed procedures may be performed without the patient’s consent if the patient is clearly not competent.
Second, consent is not required if there is no time to ascertain the patient’s competence and if failure to treat carries a significant risk of death, severe suffering, or loss or serious impairment of psychological or physical functioning.
DECISION-MAKING CAPACITY AS A MATTER OF DEGREE
The problem of determining whether the threshold of competence is met in any or all of these three cases becomes complicated once it is recognized that competence as decision-making capacity admits of degrees.
To have the capacity to make a particular decision involves more than the bare ability to express a preference for or against the treatment in question.
The preference expressed must issue from a process of reasoning which reflects a knowledge of the range of options available, an awareness of relevant consequences of the various options, and an appreciation of the costs and benefits of these consequences, relative to the decision maker’s stable values and preferences.
All of the components of decision-making capacity are subject to evaluation; that is, they can be exercised with greater or lesser skill. So the question arises: How well must one be able to reason about a decision in order to be competent to make it?
There is a sense in which the answer to this question is not something which we discover so much as we decide upon.
How high we set the threshold of competence here — as in other areas such as the level of skill required to be licensed to drive a car — depends upon a balancing of competing considerations.
In particular, how willing are we to allow some individuals to suffer avoidable harm as a result of mistaken judgments in order to minimize thwarting the desire for self-determination?
How willing are we to allow some individuals to suffer avoidable harm in order to prevent others from making defective choices for us in cases in which they erroneously believe they know what is best for us?
Although there is no magic formula for setting the threshold of competence for a particular type of decision, it is possible to identify the most important factors that should be taken into account in such a determination.
Perhaps the most important of these are the magnitude of the harm that is likely to result if the patient’s choice is respected and the probability that harm will occur.
IMPLICATIONS FOR THESE CASES
In the first case, neither the magnitude nor the probability of harm ranks very high. The expected harm to the patient if the wound is closed with adhesive strips rather than sutures is not great.
Hence, even if there is some doubt about how carefully the patient has considered the options and their consequences, it may still be reasonable to conclude that he is competent to make this relatively insignificant decision.
That the patient is described as “alcoholic” and “acutely intoxicated” should, of course, trigger concern about whether he is competent.
But the presence of some impairment due to alcohol is not, by itself, conclusive evidence of incompetence to make this particular decision.
In all three of the cases, efforts should be made to determine the extent to which alcohol is impairing the patient’s judgment.
Although inability to answer the questions in a simple mental status examination (“What is your name? What month is this? Where are you?”, etc.) could provide strong evidence of incompetence, the ability to answer them successfully does not insure competence.
There is no substitute here for more extensive communication with the patient. If time permits, the emergency physician might enlist the expertise of a psychiatric consultant, who would be especially trained to detect distortions of the reasoning process due to mental illness.
The first two variants of the case do not fit the emergency exception to the requirement of informed consent: Postponing treatment until a more detailed evaluation of competence can be conducted is not likely to result in serious harm to the patient.
The third case might more reasonably be viewed as exemplifying the emergency exception, depending upon the location of the wound in the abdomen.
Another factor also distinguishes the third case from the first two. Even if the physician were reasonably confident that the patient is in no immediate danger from the abdominal wound, if a crisis occurs after the patient has been released without thorough examination, such a crisis is likely to be rapidly fatal.
In other words, if the patient later changes his mind, he may not be able to reach a hospital in time. On the other hand, if either of the patients in the first two cases develops an infection, it is likely that he will be able to see a physician before great harm is done.
Finally, that most competent people would wish to have an abdominal stab wound thoroughly examined by a qualified physician provides some evidence that the patient’s decision-making capacity is impaired, at least in the absence of any indication that the patient is rejecting treatment on deeply felt, long-established religious grounds.
There are, then, several reasons to conclude that the patient in the third case is incompetent to refuse treatment, even if the patients in the first two cases are competent to refuse treatment.
Thus it seems that the physician in the third case would be on firm moral ground if he overruled the patient’s refusal and treated him more thoroughly for the abdominal wound.
IMPORTANCE OF BUYING TIME
This conclusion, however, requires an important qualification. We should not be too quick to assume that the only alternatives open to the physician are to comply immediately with the patient’s request to be released or to treat coercively.
In each of the three cases a more subtle approach may be ethically preferable.
So long as delay will not put the patient at serious risk, the physician should attempt to buy time by conversing with the patient, making him comfortable, offering him a place to rest.
In doing so, the physician may be able to overcome the patient’s initial hostility and uncooperativeness by establishing trust. It may also be possible to find out whether the patient has a family or close friend whose aid might be enlisted in an attempt to make a more accurate assessment of competence or to change the patient’s mind.
Two other developments might also occur during this interval which would avoid a direct confrontation and the need to treat the patient forcibly: He may either “sober up” or simply fall asleep.
If none of these less confrontational approaches succeeds, what is the physician to do? If my analysis thus far has been on target, a strong case can be made for releasing the patients in the first two cases.
The patient in the third case, however, should be retained — forcibly if necessary — for further observation and treatment.