Managing Incompetence

Because functional or decision-making capacities occur on a continuum and because a person's capacities can be expected to fluctuate over time, in most cases a clinician need not be resigned to accept a patient as permanently incapacitated. The clinician frequently has opportunities to enhance the person's functional or decision-making capacity. Hearing aids, eyeglasses, psychotropic medication, counseling and psychotherapy, and specific behavioral training in the area of incapacity are examples of remedial efforts that can be made to improve a person's capacity. When such efforts fail, disposition of those who are incapacitated is a complex matter and varies with the context in question. In a case where life-saving treatment may be needed, the clinician may have to obtain an adjudication of legal incompetence in order to treat an incompetent refusing patient.

Although competence is a necessary precondition to respecting patient choice, incompetence is not a sufficient condition to overriding it, contrary to much clinical and lay understanding. The clinician may wish to, and often should, respect a person's preferences even if the person is legally incompetent or functionally incapacitated. The clinician may ask a young boy with which parent he prefers to live following his parents' divorce; the clinician probably will ask an elderly, demented woman whom she prefers to manage her estate should the appointment of a legal guardian be authorized.

Before intervening over the person's objection, the clinician needs to specifically assess the risks, benefits, and alternatives; this includes an evaluation of the potential harms of a proposed intervention to the person. Overriding treatment refusals, whether by a healthcare professional, family member, or court, ethically and legally requires evidence that (1) such treatment would benefit the patient (the "best interests" test); (2) such treatment would have been the decision of the patient had he or she been able to make the decision (the "substituted judgment" test); or (3) the patient had provided some previous direction or instruction about the treatment in question ("expressed interest" test). The test of substitute decision making varies with the decision, the decision maker, and the legal jurisdiction. Use of the substituted-judgment or the expressed interest test, in contrast to the best-interests test, better respects the person's autonomy and self-determination.

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