Transcript Medical Ethics and Choice of Treatment or Determining

Medical Ethics and Choice of
Treatment
or
Determining decision making
capacity – drawing clear lines in
a murky sea of gray…
James Hallenbeck, MD
Director, Palliative Care Services
VA Palo Alto HCS
Draw a line, separating black
from white
Black = lacking capacity
 White = has capacity

How do you determine decision making capacity?
Do you have decision making
capacity relative to the following:
Choosing what to eat for lunch?
 Determining what type of motor oil to use
for your car?
 Investing in the stock market?
 Deciding to undergo liposuction
 Choosing the best antibiotic for an
infection?
 Where to live, while dying?

Goals of presentation
To raise more questions than I answer
 Highlight traditional ways of thinking about
decision making and capacity in medical
ethics
 Present a brief critique of this approach
 Some suggestions for better ways to
procede

What “factors” go into making a
decision?
Personal preferences
 Not entirely rational, related to values
and esthetics
 Knowledge/understanding
 Risk assessment – probability of
benefit/burden
 Less obvious: potential involvement of and
impact on other people

Definitions
“Core meaning” of competence: “The ability to
perform a task.” Beauchamp

Decision making capacity: determined by
clinicians

Competence for decision making:
determined by the court
Are capacity and competence different in terms of ethics or
effect, or merely different in terms of who decides?
Decision making capacity

“In medical contexts, for example, a person
is usually considered competent if able to
understand a therapeutic or research
procedure, to deliberate regarding its major
risks and benefits, and to make a decision in
light of this deliberation.”
Beachamp & Childress
Linkage of capacity to the
decision

Classic teaching: decision making capacity
is determined relative to particular decisions
 Patients may have capacity for some
decisions and not others
 Example: a patient with dementia may
be able to chose to take a pain pill, but
not whether to have a particular
surgery
Problems with linking capacity to
individual decisions:
Competence vs. capacity: as competence is
a time-consuming procedure – more a
determination regarding the patient than the
decision – medical decisions tend to be
“bundled” in competency determinations
 Not always practical – how many decisions
are made in a day?
 Capacity may fluctuate over time

Patient characteristics of capacity
Fixed vs. fluctuating mental functioning
 Capacity of the individual to deal with a
decision
 Potential ability vs. actual ability

Potential ability to deal with a
decision
Ability to “hold” information
 Attention, memory
 Ability to consider new information
 Ability for “reasonable” reasoning
 IQ
 Free from internal coercive forces

Actual ability to make a decision

Presumes potential abilities, but goes on to
evaluate whether the person actually as the
necessary information and understanding to
make a choice
 Example: While I presumably have the
necessary potential to be a stock investor,
some would say I lack the ability to
invest
Characteristics of the choice
Potential benefit-burden
 Low risk/high gain: a low threshold for
determining capacity
 Probability of benefit or burden
 Environmental and coercive forces

Problem of testing
Desire for an “empiric” test to provide
necessary information – avoiding personal
bias
 Problems
 Temporal fluctuation
 To the extent capacity is linked to
specific decisions, ? Applicability of
chosen test to that decision

Beauchamp’s range of
incompetence
Inability to express or communicate a
choice
 Inability to understand one’s situation and
its consequences
 Inability to understand relevant information
 Inability to reason
 Inability to give a rational (italics mine)
reason

Beauchamp’s range of
incompetence – cont.
Inability to give risk/benefit related reasons
 Inability to reach a reasonable decision

Tests can be applied to address these specific factors
involved in decision making
Historical perspective

Current way of thinking of medical decision
making capacity very recent – last 30-40
years

The problem of having to make decisions
related to the care of sick individuals of
questionable capacity is not new
What changed?
Changes influencing thinking
about medical decisions
Medical decisions more complex with
bigger stakes, medically and economically
 A cultural shift in favor of autonomy over
medical paternalism
 A more litigious health care environment
and society

What is wrong with this
approach?

Not psychologically or anthropologically
based, but based on abstract ethical
principles and law
 Prioritization on rationality (reason over
values)
 Probability assessment
 Individual (rather than collective)
decision making
Example hormone replacement study
Presumption of “competence” on
the part of assigned judges
Clinicians: often lack training, have strong
biases, not always rationally based
 Courts: what is their training?
 Court-appointment guardians – may be
influenced (coerced) by political forces
having nothing to do with the patient’s best
interests

What to do?

Approach topic with humility –
acknowledge that we may not be terribly
wise about this
What to do?

Balance hyper-rational, legalistic approach with
notions of kindness, flexibility and an appreciation
for more human attributes of decision making
involving:
 Values and stories
 Culture
 Mutual respect
 Negotiation
 A sense of humor
We’re all mad here. I’m mad.
You’re mad
Cheshire Cat in Alice in
Wonderland