There is no international clinical, legal, philosophical, or ethical consensus about competence criteria or standards, and many are in use. In other words, there is no agreement about the threshold of decision-making or functional capacity necessary to consider a person legally or morally competent. In a given case, there may be wide consensus among clinicians, legal professionals, and ethicists that a particular person is, or is not, competent in some respect; however, disagreement is likely in many cases. In part, this derives from the fact that competence determinations are not essentially factual, objective, or empirical matters but rather are value-laden judgments about the relative importance of autonomy and beneficence to the person, as assessed by the clinician or others. Competence is typically inferred from the person's behavior and thinking rather than observed directly, and evaluators may differ in their judgment of the person's competence. Such differences about the person's competence occur in part due to evaluators' varying perceptions of the person's values or of the person's rationality. Under the most common view, competence is not a fixed property of an individual applicable to all decisions and all potential risks; rather, competence is a context-dependent, decision-specific, interpersonal process (Buchanan and Brock; Drane).
Criteria for competence involve whether the person can make a choice, communicate that choice, understand relevant information about the choice and its alternatives, and rationally manipulate information about the choice and its alternatives (Appelbaum and Grisso). The person must be able to apply the relevant information about a prospective decision to his or her own case rather than in the abstract or as applied to someone else.
The influential U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research adopted a standard of capacity that requires (1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one's choices (U.S. President's Commission). This standard emphasizes the process of reasoning or decision making rather than the particular outcome of the decision. A competence standard that focuses upon the outcome of the decision can be faulted for granting greater priority to the values of the person assessing the patient's competence than to the values of the patient.
A similar definition of competence is offered by the Canadian province of Ontario: "Mentally competent means having the ability to understand the subject-matter in respect of which consent is requested and able to appreciate the consequences of giving or withholding consent" (Ontario Ministry of Health). This "appreciation" component, however, involves emotional rather than strictly cognitive considerations, and broadens the competence standard.
As noted by the U.S. President's Commission, assessment of the individual's current and previous personal values is an essential component of evaluating competence. Obtaining a values history for the individual provides critical information about the person's past major life decisions relevant to the present decision making. Judgments about a person's competence must be individualized according to his or her attitudes and values history rather than reflect only the person's knowledge, skills, and cognitive capacities.
It is unrealistic to expect that competence criteria are, or will remain, fixed over time. Competence criteria are likely to evolve as society seeks to resolve the conflict between the competing principles of respect for autonomy and concern for the person's well-being.
SLIDING SCALE OF COMPETENCE CRITERIA. The predominant approach to selecting competence criteria, at least with regard to competence to consent to healthcare, depends on the actual decision at issue. In this scheme, named the "sliding scale," the criteria for competence vary with the particular decision and its risks and benefits. As the risks of the proposed healthcare increase or as the benefits to the proposed healthcare decrease, more capacity is required for the patient to be considered competent to consent to the healthcare (Drane; Roth et al.). For example, it is less difficult to decide to consent to a course of conventional antibiotic medication for a urinary tract infection than a course of experimental chemotherapy for stomach cancer, and less capacity should be required to do so. Likewise, more capacity is required for the patient to be considered competent to refuse healthcare when its risks decrease or its benefits increase.
Although the sliding-scale approach to competence criteria is commonly used in healthcare decision making, some problems accompany its use. Given the strong bias of healthcare professionals—and society—in favor of treatment, one concern is that professionals will manipulate or selectively use those competence criteria that result in labeling competent someone who consents to healthcare, while labeling incompetent someone who refuses care. Another concern of the variable standard approach is that, counterintuitively, a patient could be considered competent to consent to a particular intervention but incompetent to refuse that same intervention (Buchanan and Brock). This may occur because refusing healthcare is more complicated than consenting to it, but here too a protreatment bias is evident.
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