The law requiring informed consent for medical treatment is clear: no matter how well-intentioned, physicians can not pursue treatment of a patient without first securing that patient’s approval, and the approval must be based on complete disclosure of the risks, benefits and alternatives. There are really only two significant exceptions to that broad-brush statement. In at least some emergencies, if the physician is unable to secure consent from the patient consent can be assumed from the circumstances. And for the incompetent patient—unable to understand the options or communicate his or her choices—there will be one or more mechanisms to allow some other person to give or withhold consent.

It might seem like the first exception is more complicated to apply than the second. “Emergency,” after all, sounds like a difficult concept to define and an easy one to second-guess after the fact. It turns out, however, that the patient’s competence is much more difficult to define in most real-world situations.

A recent article by New York psychiatrist Paul S. Appelbaum in The New England Journal of Medicine elegantly reviews the medical literature and best practices involving competency determinations. The article suggests that the medical community’s approach to determining competence is much less precise than most laypersons might assume. Dr. Appelbaum cites one study, for example, in which five different physicians viewing the same videotape of a patient interview came to widely differing conclusions about the patient’s competence.

The common reality is that doctors’ decisions about competence are usually made ad hoc—that is, on the basis of unstructured interactions with patients—and that is perhaps as it should be. But how can a physician determine that the level of competence is impaired enough that a more formal assessment should be undertaken?

In order to demonstrate competence a patient should be able to (1) communicate a choice, (2) understand the relevant information, (3) appreciate the situation and its consequences, and (4) reason about treatment options. The article suggests that a conversation with the patient touching on each of those elements can usually reveal the patient’s competence (or lack thereof).

There are some obvious questions aimed at those precise issues ("Have you decided whether to follow my recommendation for treatment? Can you tell me in your own words what I told you about your condition? What do you believe is wrong with your health now?"). The article suggests more subtle follow-up items (“How did you decide to accept or reject the recommended treatment?”) and some items for the physician to look out for (“Frequent reversals of choice because of psychiatric or neurologic conditions may indicate lack of capacity." and "Courts have recognized that patients who do not acknowledge their illnesses ... cannot make valid decisions about treatment.").

Dr. Appelbaum's review of practical issues involved in competency determinations is thought-provoking, and should be helpful to medical practitioners. Understanding the medical approach in this complex medical-legal-ethical arena is important for lawyers and patients, as well.

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