Chapter 5.A.2 (or 3.A.2) The Patient Whose Competence Is Uncertain
For discussion of determinations of competence, see also Marsha Garrison, The Empire of Illness: Competence and Coercion in Health-Care Decision Making, 49 Wm. & Mary L. Rev. 781 (2007).
Because of “complications rendering surgery more dangerous,” the amputations were not performed on Ms. Northern. She died from gangrene approximately three months after the court’s decision.
Note 1 (Applying the Tests for
In a case similar to Northern, a woman refused further dialysis, and cited the burden of the treatment, as well as her belief that Jesus would heal her. Two psychiatrists testified that the woman was depressed and not making a competent decision; a third psychiatrist believed that the woman was making a competent and voluntary refusal of dialysis. The court ordered dialysis, observing that the woman “demonstrated a lack of understanding of the high risk of death without dialysis. She refused to acknowledge the risk inherent in her refusal of treatment and through her other medical choices had demonstrated an unequivocal desire to live.” In re J.M., 3 A.3d 651 (N.J. Super. Ct. Ch. Div. 2010).
How accurate are physicians at
detecting a patient’s incapacity? In a review-of-the-literature study,
researchers found that physicians “missed the diagnosis in 58% of patients who
were judged incapable” in a formal, independent assessment. On the other hand,
physicians generally were correct when they make a diagnosis of incapacity. The
researchers also found that the best formal assessment tool for measuring
capacity to decide is the Aid to Capacity Evaluation. Laura L. Sessums, Does
This Patient Have Medical Decision-Making Capacity?, 306 JAMA 420 (2011).
Note 2 (Adolescents)
For additional discussion, see Symposium, Roundtable on Adolescent Decision Making, 15 J. Health Care L. & Pol’y 1-172 (2012).
Note 3 (Reliability of Patient Decisions)
There also is stability over time in terms of how much patients want their treatment preferences to control once they become unable to decide for themselves and how much they want their medical decisions to be based on what their loved ones or physicians think is in their best interests. Daniel P. Sulmasy, et al., How Would Terminally Ill Patients Have Others Make Decisions for Them in the Event of Decisional Incapacity? A Longitudinal Study, 55 J. Am. Geriatric Soc’y 1981 (2007).
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