Competency and
Capacity to
Choose
Which Term?
• Competency: Best restricted to legal use
when a formal procedure has been
conducted
• Capacity to choose: best used to describe
the clinical assessment of patients by health
professionals
• “Capacity to choose” cumbersome to say so
often use “competency” for short
Errors to Avoid
• Allow persons to die at their
request when actual capacity to
choose is deficient
• Keep patients alive contrary to
their request when they possess full
capacity
Ingredients of capacity
• Communicate participation
• Understand relevant data and how they
apply
• Conceive values (what is good for me)
• Deliberate: apply values to one’s
understanding of options and their pros and
cons
Ideal Notion of Capacity
• “Objective”
• Based only on how a person’s mind works
• Is not based at all on what the person
actually chooses (e.g., to accept or refuse
life-prolonging treatment)
• This assures that we do not sneak
paternalism into the back door (anyone I
disagree with lacks capacity)
Ideal Notion of Capacity
• Buchanan and Brock: “Fixed minimum
threshold conception” of competence
• Give 5 reasons for rejecting and using
sliding scale instead
Ideal Yardstick
•
•
•
•
•
Objective
Easy to use
Gives clear answer
All staff can agree on what outcome means
e.g., Mini-Mental-Status exam, Glasgow
Coma Scale
Ideal Yardstick?
• What are we to make of the fact
that no such yardstick has been
formulated-- despite the central
importance of respect for
autonomy in our present system of
ethics and law?
Possible Explanations
• Capacity to choose is a very slippery
concept
– decision specific
– varies from day to day, even hourly
• It is “decided not discovered”-- there is no
really objective standard
Buchanan and Brock
• Sliding scale concept
• The more we see decision as benefiting the
patient, the lower the threshold needed to
prove that patient has the capacity to choose
• Attempts to provide better balance between
respect for patient autonomy and duty to
avoid harm and provide benefit
Buchanan and Brock
• Controversial claim: I may be
considered competent to say “yes” to a
given medical treatment and yet be
incompetent to say “no” to the same
treatment
• Seems to say: you have right of
informed consent but no right of
informed refusal
Buchanan and Brock
• Applying to Dax case
• Calculate expected risk-benefit balance of
allowing to die vs. continued graft/tank
• If substantially worse require maximal level
of competence
• Assess Dax to see if he meets that maximal
level
Buchanan and Brock
• Two ways to practice “hidden”
paternalism:
• Use one’s own values and not Dax’s to
decide what is “harm” and “benefit”
• Attach undue weight to any flaws or
inconsistencies in Dax’s decisionmaking process
Buchanan and Brock
• Which seems more accurate?
• “We require a higher level of competence
when a person seems to be making a
‘mistaken’ decision”
• “We need to spend more time and energy
assessing competence when a person seems
to be making a ‘mistaken’ decision”
Buchanan and Brock
• Which formulation is better (more
respectful of the patient)?
• “You lack competence so I have no duty to
adhere to your choice”
• “You seem to be making a mistaken
decision and so I have an increased duty to
try to persuade you to reconsider”
Gawande’s “Mr. Howe” case
• “Mr. Howe really lacked the capacity to
make an appropriate decision, so we had no
choice but to intubate”
• “Mr Howe had reasonable capacity to
choose, but I really thought it was not in his
best interests to forgo the respirator and so I
elected to intubate against his wishes”
• Which is more honest formulation?