Abstract
The notion of competence becomes a troublesome concept as soon as we recognize that it comes with two quite different meanings, variably emphasized in the literature, and these two conceptualizations pull us in very different directions.
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Notes
See especially Cutter and Shelp, 1991.
One might read these authors as saying no more than that for a patient’s decision to be “favorable”, it must agree with the clinician’s judgment. Although they are not clear on this, I do not believe they intended something so minimal and subjective. “Objective medical judgment” avoids this.
Allen Buchanan and Dan Brock have offered a more recent account of competence that retains the “sliding scale of competency” test, keyed to the notion of “favorability” as does Roth et al. Though I reject this option for the afore-mentioned reasons, insisting that favorability can only be a trigger for competency assessments, their account provides a much more detailed argument for this sort of view, and the reader is strongly encouraged to refer to their work Deciding For Others, especially their first chapter for a forceful, alternative treatment of these issues (Buchanan and Brock, 1986, pp. 17–86). See also my further argument regarding “favorability” in section IIIA of this chapter.
I had once believed that this notion of ‘triggers’ was original on my part. I have subsequently found other authors who have independently suggested it. See, for example, Haavi Morreim’s discussion of “suspicion-triggers” in (Morreim, 1991, pp. 121–22, note 4). See also Jonathan Moreno’s use of this strategy with adolescents (Moreno, 1989). It is also a major feature in the first chapter dealing with competency in Brock and Buchanan’s Deciding For Others (Brock and Buchanan, 1986, pp. 17–86).
It may be objected that such a response can take time and may run the risk of heightening the patient’s morbidity and mortality. However, even increased morbidity and mortality do not necessarily rule out such an attempt. Given our recognition that patient participation in decision making itself has both intrinsic and instrumental value, the disvalue of risking morbidity and mortality to the patient by waiting for sufficient decision making capacity may well be seen as acceptable, all things considered. This would depend on how significant the threat is to the patient and how important such participation is in a given case.
Such an “alert and oriented” patient may not always be making his wishes known; he may well be so ambivalent or hesitant as to be unable to “evince a choice”. This should generally be responded to by further clarification and assessment; it may also result in the patient electing to waive the right to a full informed consent, trusting instead in the clinician’s or a surrogate’s judgment, an exception to informed consent that is discussed in the next chapter.
The argument here, or lack of it, may well strike some readers as philosophically insufficient at best. It is still the case that we would be requiring a level of factual understanding at such a juncture that is not required of non-triggering patients, and we have good reason to suspect that most patients will have some flaws in understanding, certainly in grasping all the detail, sometimes on a more basic level. In a more extensive deliberation, I would attempt to offer a Rawlsian sort of argument in favor of the point that a neutral, rational observer would tend to accept the notion that triggering individuals are legitimately asked to perform at a heightened level to protect against the possibility that factual misunderstanding may well be the root cause of the triggering presentation and constitute what amounts to an essentially inadequate decision-making process. I am not sure that this argument would tend to be supported by all, particularly advocates for those with a history of mental illness, who would be routinely triggering “to the task” assessments. Perhaps some triggers, such as a history of mental illness, should only be allowed to trigger generic assessments, not “to the task” ones. But the options and considerations here are just too byzantine to sort out in the space available to us.
See Roth et al., 1982 for an extensive discussion of the issue of denial in competency judgments.
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© 1993 Springer Science+Business Media Dordrecht
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Wear, S. (1993). The Issue of Competence. In: Informed Consent. Clinical Medical Ethics, vol 4. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8122-6_8
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