Competency to make decisions

Todd Fraser on 18-08-2010

The issue of consent is a regular bugbear for many of us in ICU. The concept seems pretty clear - patients should have a right to refuse health care interventions, though there are obvious caveats. To make a truly informed decision they must have appropriate access to information to help them decide. As we all know, this is rarely straight-forward, particularly in ICU where the clinical situation is complex, dynamic and often based on assumption. They must also be capable of making an unclouded decision. So here is my question - if a patient who is critically ill (lets say with resolving abdominal sepsis with profound critical illness polymyoneuropathy and a trachy) who mouths that she wants to stop active treatment and die, would you comply? With the development of the CAM-ICU, we now have a tool that can indicate the presence or otherwise of delirium. Is this sufficient to ensure the patient is competent to make decisions on their healthcare?


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andrew stapleton wrote 08-18-2010 01:53:34 pm
I do not think that a profoundly weak person in the very early recovery stage of a severe critical illness can truly consent to termination of life preserving cares. The CAM ICU scale would be irrelevant as the absence of delerium does not imply a full grasp of a complex situation. Were the patient to repeatedly assert this wish over time (weeks), and be able to provide a clear explanation of how and why they had reached this decision and been assessed by a psychiatrist as competent (and possibly by a judge if family members did not agree) I would withdraw care. There is reasonable evidence from quadraplegic patients that many are eventually very grateful to be alive 12 months down the track but early depression is very common.

Todd Fraser wrote 08-18-2010 07:00:20 pm
Thanks Andrew,

I tend to agree, though wonder if we all follow the same process. How long is enough time to be sure? What does a psychiatrist bring that we do not already know ourselves? Perhaps a "jury of our peers?"

Clearly a CAM-ICU is relevant in the sense that it rules out delirium, but your point that it is insufficient to define competency is also clear.

I'm curious about the evidence you cite - when discussing this with my colleagues we'd wondered if there was anything to support what many of us believe - that patients change their mind. Having said that, those studies only ever ask the survivors...

Neil Orford wrote 08-18-2010 09:32:55 pm
My understanding is the considerations, from an ethical and legal perspective, are to establish competency, then consider autonomy and best interest standards.
Competence is generally assumed, that is you have to prove incompetence, although critically ill patients have a disease / psychological process that may alter this. If the patient is not confused, can appreciate fully all of the consequences of his or her decisions, and has a full understanding of their own or others' actions they are competent. Clearly mouthing the desire to stop as a one off does not fulfill these criteria.

A clear conversation to establish competence, and fully discuss issues regarding expected prognosis, treatment options, and consequences of decisions. preferably with surrogates present, is generally enough to establish competency.

The point about how long this has to be expressed for (hrs, days, weeks) is not established, and appears to be situation dependant. If an alert, non depressed, coherent patient, with the support of his/her family, expresss a desire to have ventilation withdrawn, because they feel the burden of recovery does not outweigh the possible benefits of survival, will you really make them tell you every day for 2 weeks, or is 2,3,4 days enough?

Do you really need a psychiatrist to prove competence, or is their role to establish incompetence where you suspect it?

The role of the courts in establishing competency seems limited, at least in Victoria. If the intensivist

andrew stapleton wrote 08-19-2010 12:21:27 pm
I meant to say the psychiatrist's role would be to exlude depression rather than establish competence. Each situation is different and my response was to the scenario given rather than a general approach. Even a consensual approach amongst intensivists is open to criticism of conflicting interests which is why I would try and involve a different medical professional. In my opinion humility is not one of the obvious strengths of intensivists.
Re: evidence from quadruplegics - I can't give you the reference but it was an American article in a critical care journal arguing against early ICU treatment limitation decisions. In fact I disagreed with most of it and agree that asking only the survivors is subject to bias!

sharyn milnes wrote 08-19-2010 06:17:09 pm
Both consent and actions in negligence occur in common law so a consensus of opinion of 'reasonable' peers is always a safe and clinically useful consideration. There is nothing in law that says judgments on capacity to make decisions or 'competence' need to occur by a psychiatrist and indeed there is no specific test for competence but rather a range of assessments which would verify a patient's ability to make a competent decision. Though i do acknowledge here that it is to rule out depression (which i will come back to).

In this scenario, if we judge that this patient is indeed competent to make decisions about her care, the question that needs to be asked of physicians is "What is it that this patient needs to understand to make a competent refusal?" Consideration in answering this question needs to be information which would be material to this particular patient in this particular situation. Issues such as:
Certainty of death/suffering/pain for both continuation and withdrawal of treatment.
Prognosis if treatment continues.
Ability to communicate with family and loved ones in a meaningful way.
Time to tie up loose ends which are important to the individual. etc.

The patient in this scenario is not 'consenting to termination of life preserving care' but rather refusing further treatment which is an important distinction in law. It is a competent patient's autonomous right to both consent and refuse treatment. If the patient is deemed competent to either c

sharyn milnes wrote 08-19-2010 06:35:16 pm
I've just found another article you may find interesting:
The Contribution of Demoralization to End of Life Decisionmaking Author(s): David W. Kissane Source: The Hastings Center Report, Vol. 34, No. 4 (Jul. - Aug., 2004), pp. 21-31 Published by: The Hastings Center Stable URL:
Accessed: 19/08/2010 02:38

Todd Fraser wrote 08-21-2010 12:13:45 pm
Ironically, the latest edition of the Medical Journal of Australia contains an article on a very similar theme. Its certainly worth considering :

Legal and ethical aspects of refusing medical treatment after a suicide attempt : the Wooltorton case in the Australian context. MJA 2010; 193:239-242




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