Capacity and Competence 

OVERVIEW

• Capacity is a functional term that refers to the mental or cognitive ability to understand the nature and effects of one’s acts
  
• Competence is a legal term that can be defined as being “duly qualified: having sufficient, capacity, ability or authority” — in practice it requires health professionals to perform a functional test of competence to examine the ability of the particular patient to consent to the specific treatment being offered
• Capacity and competence are often used interchangeably

PRESUMPTION OF COMPETENCE

• In Australia at common law and under some statutes, adults (people over 18) are presumed to be competent, although it is possible to rebut the presumption by showing that an adult lacks competence
• In some states the presumption of competence has been extended to people younger than 18
• The presumption is reversed for children — they are presumed to be incompetent unless they can prove otherwise

ELEMENTS REQUIRED TO DEMONSTRATE COMPETENCE

• Demonstrating competence involves 4 important elements, the ability to:

• Understand information relevant to the decision AND
• Retain information relevant to the decision AND
• Use or weigh information relevant to the decision AND
• Communicate the decision

DETERMINING COMPETENCE

• Testing understanding is extremely difficult
• the law does not require any specific types of tests of competence
• Useful questions to ask:

1. What is your present physical condition?
2. What is the treatment being recommended for you?
3. What do you and the doctor think will happen to you if you decide to accept treatment?
4. What do you and your doctor think will happen to you if you do not accept the recommended treatment?
5. What are the alternatives available (including no treatment) and what are the possible consequences of accepting each?

PITFALLS AND CHALLENGES

• Under-recognition of Cognitive Impairment
  • Up to 60% of individuals with mild to moderate cognitive impairment remain undiagnosed, highlighting the prevalence of under-recognition in clinical settings.
• Variability in Competence
  • Competence is not static and may fluctuate over time, making continuous assessment critical.
• Capacity and Mental Illness
  • The presence of a mental illness does not inherently equate to a lack of capacity to consent, provided the individual can fulfill the required elements of informed consent.
• Task-Specific Competence
  • Competence may be specific to particular tasks. For instance, a patient may be competent to consent to a straightforward procedure but lack competence for a more complex decision.
• Reasoning in Decision-Making
  • A patient’s decision need not align with what others may consider “reasonable”; however, it must reflect a process of reasoning and understanding.
• Enhancing Competence through Patient Comfort
  • Improving a patient’s comfort level can positively impact their competence. Strategies include providing time to think, involving supportive friends or relatives, addressing reversible symptoms (e.g., alleviating pain), and creating a calm, non-threatening environment.
• Comprehensive Assessment in Cases of Disagreement
  • In cases where there is disagreement among health professionals, patients, or guardians, comprehensive evaluations such as neuropsychiatric testing and extensive corroborative assessments are recommended.
• Seriousness of Decisions and the Required Care
  • The gravity of the decision being made demands a proportionate level of care to establish and confirm a presumption of competence.
• Limitations of Simple Cognitive Tests
  • Tests like the Mini-Mental State Examination (MMSE) have inherent limitations, including cultural specificity and failure to comprehensively assess various cognitive domains.
• The Dilemma of Consent for Capacity Assessment
  • Obtaining consent to assess capacity can present a dilemma, especially when there is a potential lack of capacity itself. This requires sensitive and thoughtful handling to ensure ethical and legal standards are met.

DETERMINING COMPETENCE AND CAPACITY:

For informed consent, patient needs to have adequate competence and capacity:

How to Assess Capacity 

• TALK to your patient, i.e. Can they process information? 
• OBSERVE for odor of ETOH or signs of drug intoxication 
• Glasgow Coma Scale 
• O2 sat 
• BGL 
• MMSE
• Orientation to time, place, person

If patient is not competent or does not have the capacity to make such a decision, then ask consent from Next of kin or designated carer, or close relative:

1. Advance Health Directive (AHD): If the patient has previously completed an AHD, it outlines their healthcare preferences and may appoint a specific decision-maker. Healthcare providers are legally obligated to follow the directives specified in this document. Advance Care Planning
2. Enduring Power of Attorney (EPOA): In the absence of an AHD, an EPOA may have been established, appointing an attorney to make health decisions on the patient’s behalf. This document must be consulted to identify the appointed individual. Advance Care Planning
3. Statutory Health Attorney: If neither an AHD nor an EPOA exists, Queensland law designates a statutory health attorney in the following order:
   • A spouse or de facto partner in a close and continuing relationship.
   • An adult who is responsible for the patient’s primary care, provided they are not a paid carer.
   • An adult who is a close friend or relative and is not a paid carer.
4. If no suitable person is available, the Public Guardian assumes this role.