RM Services
Frequently Asked Questions
Office Practice Risk Evaluations
Arbitration
Self-Evaluation Toolkit
RM Articles
CAPsules Editions
CME Program/Schedule
RM Questions
RM Materials / Forms
RM Alerts
Case Of The Month - Past Issues

Competency and Informed Consent
for End-of-Life Decisions
By: Dan Groszkruger, J.D., M.P.H.

Download article in Microsoft Word (.doc) format (zipped, 5KB)

Physicians regularly confront difficult legal issues that arise within the physician-patient relationship. Few are more problematic than end-of-life decisions, involving issues of competence and informed consent. A legal definition of competence provides little guidance for a clinician faced with a patient whose faculties are probably impaired. What standards should apply to a determination of competence? Should the physician follow an advance directive executed by a patient at a time when his or her mental faculties may have been impaired? What level of impairment will preclude the patient's capacity to provide an informed consent? When should a court determine the patient's competence? The following discussion may assist the physician who is faced with this dilemma.

A competent adult may make his or her own treatment decisions, including refusal of life-sustaining treatment. A competent adult understands the nature and seriousness of the medical condition, the purpose of the recommended medical treatment, and the risks and benefits of consenting to or refusing the recommended treatment. A competent adult is able to answer questions about his or her condition or treatment, and demonstrates a rational thought process.

A patient should be presumed competent unless there are indications to the contrary. While no specific test or measurement is required, the attending physician is responsible for determining competence. The patient's behavior, clinical condition and interaction with family and friend are all relevant. A psychiatric evaluation is not necessary, but the physician may consider one in close cases. The substance of discussions with the patient and family, consultations, and other relevant information should be recorded in the chart. The physician's conclusion regarding the patient's competence, or lack thereof, must also be documented in the chart.

Generally, a court's determination of competence is not required, if the physician can adequately assess the patient's mental functions. Where court intervention appears necessary, a petition (Probate Code º3201) may be filed in Superior Court by the patient, any family member, the patient's physician or other interested persons. The petition should be based on the physician's findings that suggest a deficit in alertness and attention, inability to process information, irrational thought processes or inability to modulate mood and affect.

A competent adult must be able to process sufficient information in order to make an intelligent decision about recommended care, including withholding or withdrawing life-sustaining treatment. The physician must disclose all "material" information, i.e., information that would be regarded as necessary or helpful by a reasonable person in the same or similar situation. Such disclosure includes a description of the recommended measures, potential adverse risks, complications, and expected benefits. Also, the physician should explain the likelihood of success and treatment alternatives, including the option of no treatment. Generally, it is not necessary to disclose minor risks or consequences that are remote an unlikely, although possible. The substance of the dialogue between physician and patient must be documented in the chart, as indirect evidence that informed consent was obtained.

Determining competence to provide an informed consent is a threshold requirement for end-of-life decision-making. As with standard of care issues, a retrospective review of the physician's conduct and exercise of professional judgment often will focus on the written record, which carries more weight than the physician's present recollection of past events. Proper documentation of discussions and findings, regarding a patient's capacity to give informed consent and competence to make end-of-life decisions, is the surest way to avoid or minimize exposure to malpractice liability.