Disclosure requirements vary across jurisdictions. In 1960, Natanson v Kline supported the standard that disclosure required that which a “reasonable practitioner” might disclose to patients about their treatment in similar circumstances.8 Although some jurisdictions have maintained that standard,5 subsequent cases identified a more patient-centered approach to disclosure called the “reasonable person” standard (Box 2).5,9
Competence. In many settings, clinicians use the construct of “capacity” rather than “competence” because competence is a legal term that can be determined only by a judge. When an individual is deemed incompetent, his or her right to make autonomous decisions can be overridden. Children are not competent by virtue of their status as minors, although exceptions may be made for certain older youth. Adults are presumed competent unless adjudicated otherwise.
Typical elements of disclosure to meet the ‘reasonable person’ standard
Adult patients with psychotic disorders are not automatically or always incompetent. Research has shown that most inpatients with mental illness have capacities to make treatment decisions similar to persons with medical illness.10 Patients with schizophrenia, however, have deficits relevant to capacity to make treatment decisions more often than patients with medical illnesses and depressive disorders. Patients with depressive disorders also are more likely to have some decision-making impairment compared with persons with medical illnesses.10 Thus, in psychiatric settings, a heightened awareness of a patient’s potential deficits related to competence is important.The “reasonable person” standard endorses the obligation of the professional to disclose information that a reasonable person would want to know about a proposed treatment. This standard evolved in part from Canterbury v Spence,9 in which a plaintiff who had become paralyzed alleged that he was not informed of the risks of a laminectomy. The court found that the patient must be able to rely on information that the physician holds that would be material to the patient in making an informed treatment decision in his or her best interest.
The typically required elements of disclosure include:
- diagnosis, if known
- nature and purpose of proposed treatment
- risks and benefits of proposed treatment
- alternatives to treatment and their risks and benefits
- risks and benefits of no treatment.
Disclosing information that is uniquely relevant to an individual’s situation and would be generally unknown to the clinician might not be required. For example, a clinician might not realize that it is important for a particular patient to be able to make small art objects as a hobby, so the clinician might not reveal that a medication very rarely causes a tremor. Nevertheless, when you are aware of a need for such nuanced information, the usual general disclosure can be modified to include whatever details are relevant to that patient.5
Competence can be broken down into 4 component capacities (Box 3).11 The degree of incapacity required for a finding of incompetence is complicated and difficult to codify. Instruments designed to standardize competence assessment are available12 but not routinely used in clinical settings. Even with these instruments, no threshold of capacity clearly defines competence. Some authors have argued for a sliding scale of competence, with standards becoming more stringent as the degree of risk related to the treatment decision increases.13,14
4 abilities patients must have to be considered legally competent
Express and sustain a choice. To be considered competent to give informed consent, a person must be able to evidence a choice regarding the decision at hand. The choice need not be expressed verbally, but a patient must be able to communicate in some fashion (such as eye blinking or handwritten communication). The patient also must be able to maintain that choice over time, long enough for treatment to be implemented.
Understand presented information. A person must have a factual understanding of the information presented about the treatment. A full scientific understanding of diagnosis and subtleties of treatment likely would be an excessive expectation. For example, a patient would not be expected to understand the nuances of the serotonin neurotransmitter system. A physician should, however, assess whether the patient understands—in the patient’s words—that a selective serotonin reuptake inhibitor could induce manic-type symptoms and that the patient should bring these symptoms to the prescribing physician’s attention if they occur.
Appreciate one’s situation. Individuals who are competent must have a realistic appreciation of their situation. Though a patient may understand the facts you have presented, he may fail to fully integrate why the information is relevant to him. Persons with schizophrenia who do not believe they are ill—such as Mr. D—might have a limited appreciation of why an antipsychotic would help them.
Rationally manipulate information. A person also must be able to rationally manipulate the information in a way that is not impaired by symptoms of illness. Patients faced with a treatment decision should be able to use reason to reach a logical and rational decision that they see as being in their best interest. This might not be the same decision you would make. For example, a patient with thought disorganization or one who psychotically believes that the color of a recommended medication signals that someone tampered with the pills might not be able to rationally manipulate information presented about treatment options.
Source: Reference 11