Refining definitions and devising instruments: Two decades of assessing mental competence

International Journal of Law and Psychiatry

Volumn 20, Issue 1, 1997, Pages 5-33

  Glass, Kathleen Cranley ^a  

^a MCGILL UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

COMPETENCE; DECISION MAKING; FUNCTIONAL ASSESSMENT; LAW; MENTAL CAPACITY; REVIEW;

EID: 0031003015     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(96)00020-9     Document Type: Article

References (84)

1. K.C. Glass, Elderly Persons and Medical Decision-Making: Challenging Canadian Law (Doctoral dissertation, Graduate Faculty of Law, McGill University, 1992).
2. R. Faden & T. Beauchamp. A History and Theory of Informed Consent (New York: Oxford University Press. 1986) at 288.
3. D. Weisstub, Law and Psychiatry in the Canadian Context (New York: Pergamon Press, 1980) at 175.
4. Depending on the particular context, competence may mean legal capacity to enter into a contract, to testify in court, to make a will, to appoint an agent, or to make a decision to accept or refuse medical treatment. A number of legal tests for competency or "fitness" to engage in certain legal activities have been established based upon various statutes and case law. The variability in the definitions of competence or capacity is extremely wide. For a review of a variety of such definitions, see M. Mezer and S. Rheingold. "The Role of the Psychiatrist in Mental Competency Cases" (1963) 9 Practice Law 85.
5. R. Macklin, Mortal Choices, (Boston: Houghton Miflin, Co., 1978) at 87.
6. See the Ontario case Re McElroy (1978), 93 D.L.R. (3d) 522, where a 78-year-old man was found capable of marrying while lacking testamentary capacity.
7. M. Minnow, "Interpreting Rights: An Essay for Robert Cover" (1987) 96 Yale L.R. 1860 at 1883-1884.
8. R. Revelle, Rapid Population Growth (Baltimore: John Hopkins University Press, 1971) at 33.
9. N.N. Dubler, "The Dependent Elderly: Legal Rights and Responsibilities in Agent Custody" in S. Spicker, S.R. Ingman and I.R. Lawson, eds. Ethical Dimensions of Geriatric Care (Philadelphia: Reidel Publishing Co. 1987) at 142.
10. Enquiry on Mental Competency: Final Report (Toronto: Queen's Printer for Ontario, 1990) (Chair: D. Weisstub) at 29.
11. L.M. Kopleman, "On the Evaluative Nature of Competency and Capacity Judgments" (1990) 13 Int. J. Law Psych. 309 at 316 et seq.
12. Enquiry on Mental Competency, supra, note 10 at 29.
13. K.C. Glass & M.A. Somerville. "Informed Consent to Medical Research on Persons With Alzheimer's Disease: Ethical and Legal Parameters", in J.M. Berg, H. Karlinsky & F.H. Lowey, eds, Alzheimer's Disease Research: Ethical and Legal Issues (Toronto: Carswell, 1991) and Faden and Beauchamp, supra, note 2 at 288-290.
14. K.C. Glass. "Informed Decision-Making and Vulnerable Persons: Meeting the Needs of the Competent Elderly Patient or Research Subject." (1993) Queen's Law Journal 191; E.W. Keyserlingk, K.C. Glass, S. Kogan & S. Gauthier, "Proposed Guidelines for the Participation of Persons With Dementia As Research Subjects," Perspectives in Biology and Medicine 32:2 (1995).
15. K.C. Glass. "Informed Decision-Making and Vulnerable Persons: Meeting the Needs of the Competent Elderly Patient or Research Subject." (1993) Queen's Law Journal 191; E.W. Keyserlingk, K.C. Glass, S. Kogan & S. Gauthier, "Proposed Guidelines for the Participation of Persons With Dementia As Research Subjects," Perspectives in Biology and Medicine 32:2 (1995).
16. A. Meisel, The Right to Die, (New York: John Wiley & Sons, 1990) at 188.
17. M. Silberfeld, W. Harvey, B.M. Dickens and R.J. Pepper-Smith. "A Competency Clinic for the Elderly at Baycrest Clinic" (1989) 10 Advocates Q. 24.
18. Weisstub, supra, note 3 at 176.
19. In 1977, Roth, Meisel, and Lidz summarized the tests from the literature and inferable from judicial commentary: (a) evidencing a choice, (b) "reasonable" outcome of choice, (c) choice based on "rational" reasons, (d) ability to understand, and (e) actual understanding, which in later work, they concentrated into four general approaches. See L.H. Roth, A. Meisel, and C. W. Litz, "Tests of Competency to Consent to Treatment." Am. J. Psychiatry 134;3:279-284 (1977) and P.S. Applebaum, C.W. Lidz and A. Meisel, Informed Consent (New York: Oxford University Press, 1987) at 83 to 87. A further reformulation is contained in P.S. Applebaum and T. Grisso, "Assessing Patients' Capacities to Consent to Treatment," N. Engl. J. Med. 319:1635-8 (1988). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, U.S. Govt. Printing Office, 1982).
20. In 1977, Roth, Meisel, and Lidz summarized the tests from the literature and inferable from judicial commentary: (a) evidencing a choice, (b) "reasonable" outcome of choice, (c) choice based on "rational" reasons, (d) ability to understand, and (e) actual understanding, which in later work, they concentrated into four general approaches. See L.H. Roth, A. Meisel, and C. W. Litz, "Tests of Competency to Consent to Treatment." Am. J. Psychiatry 134;3:279-284 (1977) and P.S. Applebaum, C.W. Lidz and A. Meisel, Informed Consent (New York: Oxford University Press, 1987) at 83 to 87. A further reformulation is contained in P.S. Applebaum and T. Grisso, "Assessing Patients' Capacities to Consent to Treatment," N. Engl. J. Med. 319:1635-8 (1988). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, U.S. Govt. Printing Office, 1982).
21. In 1977, Roth, Meisel, and Lidz summarized the tests from the literature and inferable from judicial commentary: (a) evidencing a choice, (b) "reasonable" outcome of choice, (c) choice based on "rational" reasons, (d) ability to understand, and (e) actual understanding, which in later work, they concentrated into four general approaches. See L.H. Roth, A. Meisel, and C. W. Litz, "Tests of Competency to Consent to Treatment." Am. J. Psychiatry 134;3:279-284 (1977) and P.S. Applebaum, C.W. Lidz and A. Meisel, Informed Consent (New York: Oxford University Press, 1987) at 83 to 87. A further reformulation is contained in P.S. Applebaum and T. Grisso, "Assessing Patients' Capacities to Consent to Treatment," N. Engl. J. Med. 319:1635-8 (1988). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, U.S. Govt. Printing Office, 1982).
22. In 1977, Roth, Meisel, and Lidz summarized the tests from the literature and inferable from judicial commentary: (a) evidencing a choice, (b) "reasonable" outcome of choice, (c) choice based on "rational" reasons, (d) ability to understand, and (e) actual understanding, which in later work, they concentrated into four general approaches. See L.H. Roth, A. Meisel, and C. W. Litz, "Tests of Competency to Consent to Treatment." Am. J. Psychiatry 134;3:279-284 (1977) and P.S. Applebaum, C.W. Lidz and A. Meisel, Informed Consent (New York: Oxford University Press, 1987) at 83 to 87. A further reformulation is contained in P.S. Applebaum and T. Grisso, "Assessing Patients' Capacities to Consent to Treatment," N. Engl. J. Med. 319:1635-8 (1988). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions (Washington, U.S. Govt. Printing Office, 1982).
23. Institut Pinel c. Dion, [1983] C.S. 438; Institut Pinel c. Blais [1991] R.J.Q. 1969; Fleming v. Reid (1991), 82 D.L.R. (4th) 298: Institut Pinel c. Aligharavy (1994) J.E. 94-1725; Sevels v. Cameron (1995) Ontario Court of Appeal File G 11872.
24. P.G. Québec c. Hôpital Notre-Dame & Niemic, [1984] C.S. 426.
25. A.G. British Columbia v. Astaforoff, [1983] 6 W.W.R. 322 (B.C.S.C.). aff'd [1984] 4 W.W.R. 385 (B.C.C.A.).
26. New Brunswick v. Doucet [1995] N.B.J. No.312.
27. M.W. (J.) c. C.-W. (S.), [1996] R.J.Q. 229.
28. Malette v. Shulman (1988), 63 R. (2d) 243, aff'd [1990], 72 O.R. (2d) 417. This case involved the consent to treatment of an unconscious patient carrying a card declaring her to be a Jehovah's Witness and refusing consent to blood transfusions.
29. Pinel c. Dion and Pinel c. Blais, supra, note 19.
30. Re McElroy, supra, note 6.
31. Hospitals Act, R.S.N.S., s. 52(2). These criteria were referred to in combination with other suggested criteria for competence assessment in the Quebec case of Pinel c. Blais, supra, note 19. While the court held that the defendant was incompetent under all the criteria, it was not clear whether it, in fact, approved the Nova Scotia criteria. In the more recent case of Institut Pinel c. Aligharavy, supra, note 19, a Quebec court considered the ability to comprehend the nature of one's illness and the proposed treatment choice as requisites for competence to refuse treatment.
32. Art. 11 et seq., Civil Code of Quebec.
33. An Act to Provide for the Making of Decisions on Behalf of Adults Concerning Management of their Property and Concerning their Personal Care ("Substitute Decisions Act"), 1st Sess., 35th Leg. Ont., 1991, s. 46.
34. Webster's New World Dictionary, 3rd ed. (New York: Simon & Schuster, Inc., 1988) at 67 and Black's Law Dictionary at 1455.
35. Webster's New World Dictionary, 3rd ed. (New York: Simon & Schuster, Inc., 1988) at 67 and Black's Law Dictionary at 1455.
36. Malette v. Schulman, supra, note 24 at 423-424.
37. The implications of emotional factors in assessing competence are discussed further below.
38. G. Zilboorg, "Misconceptions of Legal Psychiatry" Am. J. Orthopsychiatry 9:540 (1939) at 553; B. Diamond. "Criminal Responsibility and the Mentally Ill" (1961) 14 Stanford L. Rev. 62; and R. Weinstock, "Informed Consent and Competence Issues and the Elderly," in R. Rosner & H.I. Schwartz, eds. Geriatric Psychiatry and the Law (New York: Plenum Press, 1987) at 64.
39. G. Zilboorg, "Misconceptions of Legal Psychiatry" Am. J. Orthopsychiatry 9:540 (1939) at 553; B. Diamond. "Criminal Responsibility and the Mentally Ill" (1961) 14 Stanford L. Rev. 62; and R. Weinstock, "Informed Consent and Competence Issues and the Elderly," in R. Rosner & H.I. Schwartz, eds. Geriatric Psychiatry and the Law (New York: Plenum Press, 1987) at 64.
40. G. Zilboorg, "Misconceptions of Legal Psychiatry" Am. J. Orthopsychiatry 9:540 (1939) at 553; B. Diamond. "Criminal Responsibility and the Mentally Ill" (1961) 14 Stanford L. Rev. 62; and R. Weinstock, "Informed Consent and Competence Issues and the Elderly," in R. Rosner & H.I. Schwartz, eds. Geriatric Psychiatry and the Law (New York: Plenum Press, 1987) at 64.
41. Law Commission, Mental Incapacity. Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults (London: HMSO, 1995) at 37-39.
42. Ibid. at 39
43. L.H. Glantz & G.J. Annas, "The Right of Elderly Patients to Refuse Life-sustaining Treatment," (1986) Milbank Q. 64:2:95-172 at 115.
44. There are some exceptions to this in decisions rendered in the context of involuntary psychiatric treatment. See, for example, the Blais case, supra, note 19 and Howlett v. Karunaratne (1988), 64 O.R. (2d) 418. Their applicability to competency assessment with other patients is not clear.
45. See Re C (Adult Refusal of Treatment) [1994] WLR 290; Re T (Adult Refusal of Treatment) [1993] Fam 95; and the Law Commission, Mental Incapacity, supra, note 34 at 37.
46. D.G. Blazer, E.W. Busse, W.E. Craighead and D. Evans, "Use of the Laboratory in the Diagnostic Workup of the Older Adult" in E.W. Busse & D.G. Blazer, eds. Geriatric Psychiatry (Washington: American Psychiatric Press, 1989) at 286.
47. Ibid. at 301-304.
48. One of the most commonly used is the Mini-Mental State Exam developed by Folstein et al, and variations of this exam. See M.F. Folstein, S.E. Folstein, and P.R. McHugh, "Mini-Mental State - A Practical Method for Grading the Cognitive State of Patients for the Clinician." (1975) 12 J. Psychiatr. Research 189.
49. D. Kay, "The Epidemiology and Identification of Brain Deficit in the Elderly" in C. Eisendorfer and R. Friedel, eds., Cognitive and Emotional Disturbance in the Elderly: Clinical Issues (Chicago: Year Book Medical Publishers, 1977) at 19-21.
50. R. Macklin, supra, note 5 at 85-87. The failure of mini-mental status exams to differentiate known competent and incompetent patients with reasonable sensitivity and specificity has been demonstrated. See J.S. Janofsky, R.J. McCarthy, and M.F. Folstein, "The Hopkins Competency Assessment Test: A Brief Method for Evaluating Patients' Capacity to Give Informed Consent" Hospital and Community Psychiatry 43(2)132-135 (1992).
51. R. Macklin, supra, note 5 at 85-87. The failure of mini-mental status exams to differentiate known competent and incompetent patients with reasonable sensitivity and specificity has been demonstrated. See J.S. Janofsky, R.J. McCarthy, and M.F. Folstein, "The Hopkins Competency Assessment Test: A Brief Method for Evaluating Patients' Capacity to Give Informed Consent" Hospital and Community Psychiatry 43(2)132-135 (1992).
52. Blazer et al., supra, note 39.
53. Silberfeld et al., supra, note 16, at 25.
54. M. Silberfeld and A. Fish, Living With Incompetency: A Guide to Those Encountering It (Toronto, Ontario: University of Toronto Press, 1994).
55. M. Silberfeld, "Competency Assessments," (1991) 11 Estates and Trusts Journal 165-175 at 168.
56. M. Silberfeld, W. Corber and D. Checkland, "Acknowledgemnt of Limitations and Understanding of their Consequences in Mental Capacity Assessments," (1995) 13 Behavioral Sciences and the Law 381-390.
57. G. Nagie, M. Silberfeld, K. O'Rourke et al., "A Randomized Trial of a Decisional-Aid for Mental Competency Assessments," J. Epidemiology 46(3):221-230.
58. Janofsky et al., supra, note 43 at 132.
59. Supra, note 29.
60. Office of the Public Guardian and Trustee, Ministry of the Attorney General, Province of Ontario, Capacity Assessment Manual (Toronto: Queen's Printer for Ontario, 1996).
61. Ibid. at II.2.
62. Ibid. at II.3.
63. Ibid. at III.1 et seq.
64. P.S. Applebaum, and T. Grisso, "The MacArthur Treatment Competence Study I: Mental Illness and Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 105-126; T. Grisso, P.S. Applehaum, E.P. Mulvey and K. Fletcher, "The MacArthur Treatment Competence Study II: Measures of Abilities Related to Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 127-148; T. Grisso and P.S. Applebaum, "The MacArthur Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments," (1995) 19(2) Law and Human Behavior 149-174.
65. P.S. Applebaum, and T. Grisso, "The MacArthur Treatment Competence Study I: Mental Illness and Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 105-126; T. Grisso, P.S. Applehaum, E.P. Mulvey and K. Fletcher, "The MacArthur Treatment Competence Study II: Measures of Abilities Related to Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 127-148; T. Grisso and P.S. Applebaum, "The MacArthur Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments," (1995) 19(2) Law and Human Behavior 149-174.
66. P.S. Applebaum, and T. Grisso, "The MacArthur Treatment Competence Study I: Mental Illness and Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 105-126; T. Grisso, P.S. Applehaum, E.P. Mulvey and K. Fletcher, "The MacArthur Treatment Competence Study II: Measures of Abilities Related to Competence to Consent to Treatment," (1995) 19(2) Law and Human Behavior 127-148; T. Grisso and P.S. Applebaum, "The MacArthur Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments," (1995) 19(2) Law and Human Behavior 149-174.
67. Grisso et al., supra at 130-136.
68. Grisso and Applebaum, supra, note 56 at 170.
69. Ibid. at 173
70. D.C. Marson, K.K. Ingram, H.A. Cody and L.E. Harrell, "Assessing the Competency of Patients With Alzheimer's Disease Under Different Legal Standards: A Prototype Instrument," Arch. Neurol. 52:949-954 (1995).
71. Ibid. at 952.
72. See section IV.C.2., Competencee as "Risk Dependent."
73. M.A. Somerville, "Refusal of Medical Treatment in 'Captive' Circumstances" (1985) 63 Can. Bar Rev. 59-90.
74. Ibid. at 65.
75. Pinel c. Dion, supra, note 19.
76. Somerville, supra, note 63 at 67.
77. H.P. Harding, Jr.. H.J. Bursztajn, T.G. Gutheil and A. Brodsky, "Beyond Cognition: The Role of Disordered Affective States in Impairing Competence to Consent to Treatment." Bul. AM. Academy Psych & Law 19(4):383-388 (1991)
78. Id.
79. Ontario, Report of the Electro-Convulsive Therapy Review Committee (Toronto: Ministry of Health, 1985) (Chair: C.J. Clark).
80. See the discussion of understanding and appreciation in Section III, supra.
81. See Re Yetter, Northampton Co., Orphans Ct., No. 1973-533 (1973), an American case in which the patient understood that her therapy for cancer would result in removal of her breast and that this was necessary to save her life. Yet she held a delusional belief that at age 65, the surgery would render her sterile and prohibit a career in films. She was unable to "appreciate" the affects of the surgery, even though she could comprehend what it entailed factually.
82. J.F. Drane, "The Many Faces of Competency." Hastings Cent. Rep. 15:2:17-21 (1985).
83. Ibid at 17.
84. Ibid. at 20-21.