NeuroRehabilitation An Interdisciplinary Journal
ELSEVIER
NeuroRehabilitation 6 ([996) 123-132
Assessing client competence to participate in rehabilitation decision making * Vivian S. Auerbach*a, John D. Banjab a Neuropsychological Associates, b Emory
1740 Century Circle, Suite 16, Atlanta, GA 30345, USA University School of Medicine, Center For Rehabilitation Medicine, 1441 Clifton Road, NE, Atlanta, GA 30322, USA
Abstract Numerous persons receiving rehabilitation services demonstrate compromised judgmental or cognitive ability which occasionally casts doubt on the validity of their consent to, or refusal of, rehabilitation treatment. A 14-member panel of nationally recognized forensic and neurorehabilitation experts (recruited from physiatry, law and mental health) viewed 21 videotaped competency interviews of cognitively impaired inpatients in an acute care rehabilitation hospital. Each rater offered an opinion on whether the interviewee was competent or not based on background history and the interview format presented here. Their ratings are compared with those of the interviewees' treating professionals, who based their competency assessments on their day-to-day clinical interactions with the patients. Results showed similar judgments among the three groups of videotape raters but statistically significant differences between the ratings of the panel members and the patients' treatment team. Reasons for these discrepancies are explored with additional comments on the conceptual obstacles presented by competency assessments in general. This article also describes a brief evaluation of competence to consent to treatment developed during the research program with input from the panel of experts. Qualified rehabilitation providers might employ such techniques to assess competence to participate in medical decision making.
Keywords: Competency; Consent to treatment; Ethics; Rehabilitation; Decision making
1. Introduction ,', This research project was made possible by grant H133G80031 of the National Institute on Disability and Rehabilitation Research, United States Department of Education. * Corresponding author.
Although mental competence is a legal construct and courts are the ultimate arbiters in competency determinations, the input of health
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Banja / NeuroRehabilitation 6 (1996) 123-132
care professionals is frequently enlisted in judicial proceedings [1-3]. Unfortunately, assessment of mental competence of any sort is complicated by the absence of uniform standards or criteria that delineate a bright line for distinguishing competent from incompetent persons [4,5]. No professional consensus exists on which diagnostic procedures to use in performing competency evaluations, while empirical or scientific data on which to base competency judgments is scant [6]. Consequently, assessments may vary from examiner to examiner and be hotly contested in civil or criminal proceedings. Furthermore, professional assessments of competence may be predicated upon clinical evaluations or observations, ranging broadly in their thoroughness, or be performed by evaluators who vary in their expertise and knowledge of the clinical syndromes they encounter. Finally, the ultimate legal determination of competency is left to jurists, who typically lack neurological or psychiatric training. This article will provide a brief overview of clinical approaches in assessing competency to consent to, or refuse, medical treatment and then describe findings from a research project that produced a brief assessment form for evaluating the competence of rehabilitation patients with cognitive impairments to participate in medical decision making. 2. Competency assessments In day-to-day clinical contexts, clinicians who administer treatments are expected to obtain informed consent from their patients. Just like any other treating professional, rehabilitationists must consider the decision-making capacity of their patients regardless of whether formal legal proceedings are contemplated or not [7]. Many patients might not have been adjudicated incompetent, but if they present poor decision making capacity, their consent to treatment may be invalid, which could raise serious ethical and liability issues for the health provider [5,8]. Assessment approaches utilized in both judicial and clinical contexts often involve brief screenings of general cognitive abilities such as those
used in psychiatric intakes. Brief mental status testing is the most commonly used approach and has the benefit of efficiency, ease of use, and minimal expense. In-depth psychological or neuropsychological assessment is used less consistently, although it usually provides a broader survey of cognitive abilities [6]. Unfortunately, both approaches suffer a myriad of interpretational and practical problems. For example, clinical judgments may be affected by discrepancies across patients' skills or by the patients' exhibiting a veneer of interpersonal ability that masks serious cognitive impairments. Many persons with cognitive impairments can make convincing or verbally facile impressions, which can be misleading to an unknowing evaluator, particularly when brief screening procedures are utilized [9,10]. Furthermore, since no standardized criteria exist for competency judgments, the relative importance of particular deficits (as they might or might not be essential to the competency domain being evaluated) is left up to the individual evaluator [4]. Additionally, inconsistencies in a patient's cognitive functioning over time might compromise the reliability of competency judgments, since a patient may show adequate reasoning and decision making on one day and not another. Such variability is frequently seen in psychiatric patients during exacerbations of their symptomatology or during variable neurological syndromes such as epilepsy or metabolic disorders. Neurorehabilitation patients often display variable functioning as an expression of their neurological recovery or medical complications. Consequently, if the patient is displaying rapid recovery or deterioration, a neuropsychological evaluation of an acute neurorehabilitation patient may provide an invalid estimate of the patient's functioning even after a very short interval. The lack of national or even regional standards for competency determinations disposes an evaluator's assessment to greater vulnerability or accusations of bias than diagnostic judgments for which consensually validated criteria exist. Biases over competency may reflect the evaluator's personal characteristics or may represent more gen-
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Banja / NeuroRehabilitation 6 (1996) 123-132
eral attitudes and perspectives consistent with his or her training and professional background. Discrepancies across professional groups have been documented in the competency judgments of psychiatrists and lawyers [11]. Since decisions about competency to consent to treatment are usually made by health professionals in clinical contexts and may later be adjudicated in the courts, such discrepancies across professional groups challenge the objectivity these assessments might presume to claim. Finally, criticisms about the limited application of mental status or psychological test findings to everyday functioning have led competency researchers to focus on more specialized assessments which emphasize cognitive demands peculiar to the domain of competency being addressed [1,12]. As will be discussed below, what is crucial in the assessment of competency is the determination of the individual's ability to function in a real life domain (such as in handling finances or providing informed consent for medical treatment). Brief mental status or in-depth psychological testing do not directly assess such capacities and thus may possess limited predictive or ecological validity regarding the decision making capacities under investigation. Structured interviews, questionnaires and simulations have been developed toward this end [3,5,13-15]. While such assessments are usually fairly efficient in addressing domain-specific skills and have the advantage of displaying face validity for competency opinions, they nevertheless remain subject to the inevitable limitations of competency, whose criteria must await development of more widely accepted standards for acceptance. A purpose of this study was to develop an instrument to assess competency to consent to medical treatment among persons in acute neurorehabilitation which would integrate mental status and other domain-specific assessment techniques. 3. Methods
Center For Rehabilitation Medicine. Subjects ranged in age from 18 to 79 and manifested a broad range of educational attainment. Enrolment criteria included subjects' abilities to participate in cognitive testing and a competency interview, as well as their possessing a functional mode of communication (either orally or through use of an assistive device). Table 1 displays demographic and mental status characteristics of the subject sample, including means, standard deviations (S.D.) and ranges of these variables. Mini mental state examination (MMSE) [15] scores ranged from severely impaired to well within normal limits, with the average score being near the designated test cut-off for dementia screening. Sixteen of the 21 subjects sustained traumatic brain injuries. Other diagnoses included unilateral and bilateral cerebral vascular accidents [2], gunshot wounds to the right hemisphere [2], and anoxia following cardiac arrest [1]. Patients ranged from 3 weeks to 9 months in the chronicity of their neurological problems (mean = 4.3 months, standard deviation (S.D.) = 2.2 months), and had all spent at least several weeks in the inpatient rehabilitation setting (mean time since rehabilitation admission = 2.5 months, S.D. = 1.4 months, range = 3 weeks to 5.5. months).
3.2. Procedures A competency interview was administered to these subjects, which was videotaped and then evaluated by a panel of 14 senior professionals in mental health disciplines (psychiatry and neuropsychology), physiatry and mental health law. The 'videotape rater' panel consisted of five attorneys, four mental health professionals (two neuropsychiatrists and two neuropsychologists) and five physiatrists (one of whom also had a law
Table 1 Subject sample (n
3.1. Subjects The subjects in this study were 21 acute, neurorehabilitation patients at Emory University's
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Age Education MMSE
=
21; 13 male, 8 female) Mean
S.D.
Range
35.9 13.6 23.4
13.8 2.8 3.9
18-79 9-20 14-29
VS. Auerbach, J.D. Banja / NeuroRehabilitation 6 (1996) 123-132
126
degree). An additional neuropsychologist was impaneled but withdrew his participation after the assessment procedures were developed. The format of the interview consisted of standard mental status testing, augmented by a structured interview and treatment consent simulation. Suggestions and feedback from the panel members combined with extant competency assessment models resulted in the interview format described in Table 2. Although the focus of the investigation was on competency to consent to medical treatment, raters were asked to judge each patient's competency in six domains (ability to make medical
decisions, execute contracts, to serve as a parent, to make day-to-day financial decisions, to act so as not to endanger his or her welfare, and to stand trial). Following their independent reviews of the videotape, the panel raters offered their competency judgments (yes or no) in these six domains, as well as any additional comments in writing. Videotapes were mailed to raters one or two at a time over an interval of months with the intervjews usually lasting from 45 to 60 min each. Competency ratings were also obtained independently from each member of the subject's inpatient rehabilitation team with ratings requested at the same time the video was made.
Table 2 Competency assessment Preliminary content •
•
•
Discuss patient's premorbid functioning and relevant history (social, educational and vocational information; pre.existing physical or psychological problems; psychiatric diagnosis; learning disabilities; legal problems; general social history) Discuss patient's present medical condition (computerized tomographic or magnetic resonance imaging findings and severity indices); chronicity and medical course; current medical treatment, including rehabilitation therapies and goals; rehabilitation progress; length of stay determination; prognosis, including likely post·discharge disposition Mini mental status examination [15]
Structured interview Personal information What happened to you? Why are you here? What do you do here? What are you working on? What are your deficits? What do you expect from treatment/recovery? Treatment information Who is working with you? What are you working on in therapy? What do you wish to gain from therapy? What are your treatment goals? Are you making progress? Who makes decisions about what treatments you will have? What do you think would happen if you refused a certain treatment? Are there any risks associated with your treatment? Are there any benefits associated with your treatment? Are there any alternative treatments to the ones you are now getting? Do you have any problems here that aren't being taken care of? Are you taking any medications? What kind(s)? How much? Do you want to be here? Emotional adjustment How are your spirits/mood? How does that affect you and your progress? How do you feel about therapy? How is your family coping'? Do members of your family agree with your treatment plan? How does your disability affect you? How does your disability affect your family? What is the plan after discharge? What do you expect to be doing 5 years from now? Are there any questions you have? What would you do with $10000? Hypothetical scenario Present (hypothetical) problem. Describe treatment procedure. Explanation of risks, benefits (including probabilities), and treatment alternatives. Patient is asked what he/she would do in that situation, why, and to review the expected risks, benefits and alternatives.
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Such ratings were completed within days of the videotaping. These ratings were made by team members on the basis of their day-to-day experiences with the patient but without their having viewed the videotaped interviews. The patient's treatment team typically consisted of up to nine members: a physiatrist, primary nurse, neuropsychologist, occupational therapist, physical therapist, nutritionist, recreation therapist, social worker and speech pathologist. The number and identities of team members frequently changed. 3.3. Measures 3.3.1. Construction of the competency assessment fonn
The videotaped interviews included initial information regarding the patient's functioning premorbidly and since the onset of the neurological disorder. This review included social, educational, and vocational information, reports regarding any pre-existing physical or psychological problems, including substance abuse, psychiatric diagnosis, learning disabilities or other deVelopmental issues, legal problems and general social history. The nature of the patient's medical problem(s) was then described to the videotape raters, including specifics regarding CT or MRI findings and indices of severity of injury (e.g. duration of loss of consciousness and presence of medical complications). The patients' course of medical treatment was reviewed as well as details of their rehabilitation program and progress. Length of inpatient stay was reported as well as the therapy team members' projections of future services and needs. The subjects' physical mobility was graphically displayed on the videotape as subjects were shown entering the room for the competency interview. Informed consent for participating in this research project had been obtained both from the patient and a responsible family member prior to the videotaping, but the purpose and nature of the research investigation was reiterated on the videotape itself with the consent form placed in front of the patient. This maneuver reoriented the subjects to the situation and purpose of the
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interview, as well as documenting their consent and any questions or reactions they might have. Subjects were then administered the mini mental state examination [15], which is a mental status assessment instrument widely utilized in clinical and research settings. 3.3.2. The structured interview
At this point, a structured interview whose content is depicted in Table 2 was conducted. The interview consisted of questions regarding the patient's medical problem, deficits, treatment received and short and long-term expectations regarding recovery. These questions closely matched information provided previously on the videotape about the patient's medical course. Thus, videotape raters were able to contrast the patient's recollections and opinions with those documented in his or her medical history. Patients were then asked for their judgment and rationale about what they would do with $10000. The final component of the videotaped competency evaluation consisted of a simulated informed consent scenario. In each instance, the treatment proposed was a hypothetical surgical scenario which had been proposed by the patient's attending physiatrist as a procedure which might be necessary in the patient's future. Discussion of this hypothetical treatment was undertaken. A written list was given to the patient, in writing and orally, describing the nature of the medical problem of concern, the surgical procedure proposed, and its purpose, risks and benefits, and treatment alternatives. The risks and benefits were assigned percentage probabilities for each outcome. Patients were asked to decide what they would do in that situation, as well as their reasoning for that judgment. They were also asked to review the risks and benefits of such a procedure as well as the available alternatives (the written list was within their sight for review). 4. Results 4.1. Inter-rater reliability
The videotape and treatment team raters were asked to rate the subject as either competent
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Banja j NeuroRehabilitation 6 (J 996) 123-132
(yes) or incompetent (no) in the six domains cited above. The current study focuses on their estimates of competency to consent to medical treatment. In order to recommend some degree of uniformity or commonality in understanding 'competency' to consent to medical treatment, raters were asked to read Roth, Meisel and Lidz's classic paper, 'Tests of Competency to Consent to Medical Treatment' [16]. Raters were also given the opportunity to explain their ratings in an open ended or discursive way. Competency ratings of both team members and panel raters were found to show significant testretest reliability. Kappa statistics for team and panel members, respectively, were 0.73 and 0.50 (P < 0.0001 in both cases). Inter-rater reliability was demonstrated across professional groups rating the videos. As shown in Table 3, pairwise comparison of the ratings of the videotapes across professional disciplines showed no significant differences in competency to consent to treatment (Friedman analysis of variance of ranks X 2 = 2.07, df = 2). Although physiatrists were the most likely of panel members to call patients incompetent, this did not reach statistical significance in group comparisons of the panel. There was a pattern suggesting greater conservatism (i.e. more likely to evaluate a patient as incompetent) in judgments by the physiatrists and mental health professionals, which was borne out in subsequent ratings comparisons between panel and team members.
Videotape evaluators displayed more frequent ratings of competency than those obtained from team members who based their assessments on their daily observation of the patient. In fact, the greater frequency of the videotape panel to more often rate patients competent held for every competency domain assessed (Wilcoxon Signed Ranks Test T = 10.5, P < 0.01 for all domains combined, T = 32, P < 0.01 for competency to consent to medical treatment). This discrepancy between the videotape raters and the treatment team was consistent regardless of the professional discipline of the panel rater. Panel physiatrists rated patients as significantly more competent than did team members (including the team physiatrist) regarding the patient's competency to consent to medical treatment or when ratings were summarized across competency domains (T = 31, P < 0.05 and T = 12, P < 0.01, respectively). Not surprisingly, discrepancies between team and panel ratings were most common among patients who displayed cognitive functioning at or near normal levels on neuropsychological measures. Treatment team ratings showed significant discrepancies across domains of competency with competency to consent to medical treatment being rated most liberally and competency to execute contracts being rated most conservatively ( X 2 = 26, df = 5, P < 0.001). The hierarchy of ratings for the team and panel are displayed in Table 4. The panel's ratings failed to differ significantly across competency domains.
Table 3 Pairwise comparisons of professional panel ratings (Wilcoxin signed ranks test t values) Competency domain:
Treatment Contracts Parent Finances Self Trial All combined aP
< 0.05 bP < 0.02 CP < 0.01
Professional groups compared Law jmental health
Mental healthjphysiatry
Law jphysiatry
0.71 NS 0.94 NS 0.60 a -2.64 b 3.34c -0.62 NS 0.78 NS
-1.64 NS -2.38 a -0.57 NS -1.61 NS -1.02 NS -5.09 c -3.36 c
1.54 NS 2.93 c 1.09 NS -0.32 NS
3.53 c 4.15 c
3.31c
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Banja / NeuroRehabilitation 6 (J996) 123-132
Table 4 Contrasting prioritization of competency ratings between treating team and videotape panel Team
Panel
Treatment Self Parent Trial Finances Contracts
Self Trial Treatment Finances Contracts Parent
P
P
< 0.001
< 0.10
Despite the statistical reliability of the videotape panel ratings of subjects' competency to consent to treatment, some competency interviews elicited considerable disparities among the videotape raters themselves. Moreover, in only four of the 21 interviews did the videotape panel achieve total consensus. In fact, only one subject was rated incompetent by all raters on the panel and team despite the severity of cognitive impairments in many of the subjects. The only competency domain that did not evidence statistically significant variation among all three groups of videotape ratings was competency to consent to medical treatment (see Table 3). Since one goal of this research project was to develop an interview format that would yield information whereby a reliable competency evaluation of that very domain might be secured, the reliability of the interview format discussed appears to have some merit. Indeed~ the fact that the interview format presented here was primarily aimed at competence to consent to medical treatment might explain why discrepant ratings in the remaining competency domains occurred between treating therapists and the professional groups on the videotape panel. In effect, this study supports contemporary recommendations that competency assessments should address those functional tasks essential to the competency domain under investigation [1]. 5. Discussion What is striking about these findings is the statistically significant difference between the
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videotape raters assessment of competency to consent to treatment versus those of the subjects' treatment teams (who did not view the videotaped interview). Reasons for this difference could not be specified conclusively, although some hypotheses might be considered. For instance, team members might have understood the competency criteria they employed in a manifestly different way from the videotape raters. Or, by virtue of their intimate and daily interaction with patients, the treating professionals were privy to manifestations of the patient's decision making that could not be captured in a formal interview but that were profoundly revelatory of the quality of the patient's decision making. On the other hand, perhaps the consistently more conservative ratings of the patient's treatment team are attributable to a more paternal attitude that inclines them, either consciously or unconsciously, to anticipate the patient's incompetence. This might also explain the similarly conservative ratings among the physiatrists who served as videotape raters. Reasons as to why disparities existed among the videotape raters might point to certain limitations implicit in any type of competency assessment that lacks a gold standard or rules for interpreting the interviewee's responses. No universally adopted guidelines exist that stipulate how many questions an interviewee must answer correctly or how much memory, insight, reasoning, and so forth, a competent subject should be able to demonstrate. Furthermore, an occasional tendency was suggested among both our videotape raters and treatment team members to generalize about a person's competence on the basis of one or two discrete behaviours manifested during the assessment. One physical therapist, for example, declared a patient incompetent to care for himself because he consistently disregarded her instructions to keep his mouth closed during aquatic therapy. In another instance, a videotape rater pointed to a patient's confabulating the incidents surrounding his injury as indicative of incompetence in four of the six domains we studied. Perhaps related to this tendency of generalization was another tendency among videotape raters
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NeuroRehabilitation 6 (1996) 123-132
(and perhaps treatment team members) to pay selective attention either to the patient's reasoning and decision making targeted to his or her immediate clinical condition versus attending to the patient's abstract reasoning and information processing abilities. In one instance, where two physiatrists differed dramatically on their competency assessments, the one who deemed the patient competent pointed to the patient's understanding of the concrete risks and benefits attending the hypothetical treatment scenario along with his justification for having the surgery performed (i.e. 'I'll be able to move my arm better'). The other physiatrist who judged the patient incompetent noted he exhibited 'significant abstract conceptual deficits ... general inability to expand upon topical areas in a normal fashion ... (and an inability to) comprehend the implications of the interview questions.' In the absence of interpretational rules that determine the legitimacy of inference - and any competency evaluation will make an inferential leap as to whether an individual is competent or not based on certain discrete measures or observations - disparity among competency evaluators may well be the norm rather than the exception. A final, and utterly fundamental issue inherent in conducting a competency evaluation is the evaluator's attitudes towards risk-taking, both as it pertains to the evaluator as well as the patient. A declaration of incompetence might appear to assuage whatever fears the evaluator might have about his or her professional liability. Clearly, the patient with reasoning impair~ents is at greater risk (i.e. at higher probability) for making a poor or ill advised decision than his or her reasonably competent counterpart. But how serious must an impairment be before an evaluator deems a subject to have deteriorated to an 'unacceptable' limit of judgmental ability to decide about medical treatment? The degree of risk a competency evaluator is willing to allow a neurologically impaired individual to assume seems to be a thoroughly subjective determination. Again, the absence of standards shifts the resolution of this question to the judgment of the individual evalua-
tor who brings a host of idiosyncratic notions, beliefs and experiences to the assessment process. 6. Conclusion
While certain recommendations follow from this research, it nevertheless raises a host of issues that require further investigation. On the one hand, we heartily endorse the contemporary shift toward conducting ecologically valid competency evaluations. As much as possible, the evaluation should focus on the actual tasks inherent in the competency domain under investigation. Yet, without professional agreement on what those tasks actually are and what level of ability persons should demonstrate in the execution of those tasks, the validity of the competency evaluations can always be challenged. Second, persons are deemed competent unless there are good reasons to believe otherwise. However, the remarkable disparity over competency assessments we uncovered between the patient's treatment team and the videotape raters seems to raise serious questions about the degree to which either: (1) treating professionals inject their own concerns about patient safety into their judgments; or (2) whether a brief competency interview such the one presented here renders an adequate enough glimpse into a patient's decision making so as to enable an objective determination. Third, we were heartened by an absence of statistically significant disparity among our videotape raters regarding competence to consent to treatment. Yet, it is clear that certain patients elicited considerable disagreement among the raters. One wonders about the subject, for example, who four out of five physiatric raters deemed incompetent, four out of five lawyers deemed competent, and about whom the mental health providers were evenly divided; or about another subject who was deemed competent by all the videotape raters, but judged incompetent by eight out of the nine treatment team members. The possibility therefore exists that certain neurological patients present with a unique cognitive profile that elicits markedly heterogeneous reactions
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from rehabilitation providers. Further research might be well advised to identify such patients and investigate reasons for such disparity. The current research program hopes to investigate relationships between client's everyday functioning in a variety of self-care skills (e.g. personal hygiene, learning and following a basic daily schedule, need for assistance in management of medications) and clinician's ratings of competence. This may help clarify deficits considered significant by rehabilitation professionals in such judgments. Such investigations will be important in addressing concerns about the validity of more traditional assessments. Assessments of individuals in more stable chronic phases of neurological disorders would also minimize questions about the role of recovery in confounding competency ratings. The utility of neuropsychological assessment has been championed as an alternative or addition to the competency evaluation process [17]. Further investigation of the relationship between such measures and competency judgments is clearly indicated. Our preliminary review of such data suggests limited correlation, and neuropsychological data will still require the development of consensus guidelines for the types and severity of scores relevant for judgments across domains of competency. Although legal judgments of competence are subject to limitations similar to those discussed above, future research will need to address evaluation systems and professional rating patterns for individuals who have been adjudicated competent and incompetent. This may serve as a further assessment of rating validity and can permit elucidation of the strengths and weaknesses of current legal guardianship mechanisms. This raises the last point of who was really being studied in this research: the competency of neurological patients to consent to medical treatment or the judgmental behaviours and tendencies of individuals trained in physiatry, mental health or the law. To the extent that a competency assessment reveals more about the judgmental idiosyncracies of the interviewer than the decisional ability of the interviewee, it can hardly boast reliability or validity. If, on the other hand,
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the line between competence and incompetence is not a bright one but will occasionally permit ambiguity and room for disagreement, then all a competency evaluation and its interpretational guidelines can ever hope to accomplish is to elicit a respectable consensus among professional users. The interview format and results described here may have witnessed some success in that direction, but the quandaries it raises seem to suggest additional study and reflection. Acknowledgements
The authors would like to express their gratitude to two consultants - Thomas Grisso, PhD, a forensic psychologist, and Arnold Rosoff, a professor of law specializing in health care - who provided input towards the content formation of the interview. References [1]
[2]
[3] [4] [5] [6] [7]
[8] [9]
[10]
[11]
Hommel PA, Wang L, Bergman JA. Trends in guardianship reform: implications for the medical and legal professions. Law Med Health Care 1990;18:213-226. Appelbaum PS, Grisso T. Assessing patients' capacities to consent to treatment. N Engl J Med 1988;319:1635-1638. Spar JE, Garb AS. Assessing competency to make a will. Am J Psychiatry 1992; 149(2): 169-174. Appelbaum PS, Grisso T. The MacArthur treatment competence study. I. Law Hum Behav 1995;19:105-126. Searight HR. Assessing patient competence for medical decision making. Am Fam Physician 1992;45:751-759. Grisso T. Evaluating Competencies: Forensic Assessments and Instruments. New York, Plenum, 1986. Venesy BA. A clinician's guide to decision making capacity and ethically sound medical decisions. Am J Phys Med Rehabil 1994;73:219-226. Rosoff AJ. Informed Consent: A Guide for Health Care Providers. Rockville, MD, Aspen, 1981. Auerbach VS, Banja JD. Competency determinations. In: Stoudemire A and Fogel BS, eds. Medical-Psychiatry Practice. Washington, DC, American Psychiatric Press, 1993;515-535. Varney NR, Menefee L. Psychosocial and executive deficits following closed head injury: implications for orbital frontal cortex. J Head Trauma Rehabil 1993;8:32-44. Kaufmann CL, Roth LH, Lidz CW et al. Informed consent and patient decision making: the reasoning of law and psychiatry. Int J Law Psychiatry 1981;4:345-361.
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[13]
[14] [15]
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Haffey WJ. The assessment of clinical competency to consent to medical rehabilitative interventions. J Head Trauma Rehabil 1989;4:43-56. Grisso T, Appelbaum PS, Mulvey EP, Fletcher K. The MacArthur treatment competence study. II. Law Hum Behav 1995;19:127-148. Grisso T, Appelbaum PS. The MacArthur treatment competence study. III. Law Hum Behav 1995;19:149-174. Folstein MF, Folstein SE, McHugh PRo 'Mini-mental
state': A practical method for grading the cognitive state of patients for the clinician. J Psychiatr Res 1975;12:189-198. [16] Roth L, Meisel C, Lidz C. Tests of competency to consent to medical treatment. Am J Psychiatry 1977;134:279-284. [17] Callahan CD, Hagglund KJ. Comparing neuropsychological and psychiatric evaluation of competency in rehabilitation: A case example. Arch Phys Med Rehabil 1995;76:909-912.
ELSEVIER
NeuroRehabilitation 6 ([996) 123-132
Assessing client competence to participate in rehabilitation decision making * Vivian S. Auerbach*a, John D. Banjab a Neuropsychological Associates, b Emory
1740 Century Circle, Suite 16, Atlanta, GA 30345, USA University School of Medicine, Center For Rehabilitation Medicine, 1441 Clifton Road, NE, Atlanta, GA 30322, USA
Abstract Numerous persons receiving rehabilitation services demonstrate compromised judgmental or cognitive ability which occasionally casts doubt on the validity of their consent to, or refusal of, rehabilitation treatment. A 14-member panel of nationally recognized forensic and neurorehabilitation experts (recruited from physiatry, law and mental health) viewed 21 videotaped competency interviews of cognitively impaired inpatients in an acute care rehabilitation hospital. Each rater offered an opinion on whether the interviewee was competent or not based on background history and the interview format presented here. Their ratings are compared with those of the interviewees' treating professionals, who based their competency assessments on their day-to-day clinical interactions with the patients. Results showed similar judgments among the three groups of videotape raters but statistically significant differences between the ratings of the panel members and the patients' treatment team. Reasons for these discrepancies are explored with additional comments on the conceptual obstacles presented by competency assessments in general. This article also describes a brief evaluation of competence to consent to treatment developed during the research program with input from the panel of experts. Qualified rehabilitation providers might employ such techniques to assess competence to participate in medical decision making.
Keywords: Competency; Consent to treatment; Ethics; Rehabilitation; Decision making
1. Introduction ,', This research project was made possible by grant H133G80031 of the National Institute on Disability and Rehabilitation Research, United States Department of Education. * Corresponding author.
Although mental competence is a legal construct and courts are the ultimate arbiters in competency determinations, the input of health
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care professionals is frequently enlisted in judicial proceedings [1-3]. Unfortunately, assessment of mental competence of any sort is complicated by the absence of uniform standards or criteria that delineate a bright line for distinguishing competent from incompetent persons [4,5]. No professional consensus exists on which diagnostic procedures to use in performing competency evaluations, while empirical or scientific data on which to base competency judgments is scant [6]. Consequently, assessments may vary from examiner to examiner and be hotly contested in civil or criminal proceedings. Furthermore, professional assessments of competence may be predicated upon clinical evaluations or observations, ranging broadly in their thoroughness, or be performed by evaluators who vary in their expertise and knowledge of the clinical syndromes they encounter. Finally, the ultimate legal determination of competency is left to jurists, who typically lack neurological or psychiatric training. This article will provide a brief overview of clinical approaches in assessing competency to consent to, or refuse, medical treatment and then describe findings from a research project that produced a brief assessment form for evaluating the competence of rehabilitation patients with cognitive impairments to participate in medical decision making. 2. Competency assessments In day-to-day clinical contexts, clinicians who administer treatments are expected to obtain informed consent from their patients. Just like any other treating professional, rehabilitationists must consider the decision-making capacity of their patients regardless of whether formal legal proceedings are contemplated or not [7]. Many patients might not have been adjudicated incompetent, but if they present poor decision making capacity, their consent to treatment may be invalid, which could raise serious ethical and liability issues for the health provider [5,8]. Assessment approaches utilized in both judicial and clinical contexts often involve brief screenings of general cognitive abilities such as those
used in psychiatric intakes. Brief mental status testing is the most commonly used approach and has the benefit of efficiency, ease of use, and minimal expense. In-depth psychological or neuropsychological assessment is used less consistently, although it usually provides a broader survey of cognitive abilities [6]. Unfortunately, both approaches suffer a myriad of interpretational and practical problems. For example, clinical judgments may be affected by discrepancies across patients' skills or by the patients' exhibiting a veneer of interpersonal ability that masks serious cognitive impairments. Many persons with cognitive impairments can make convincing or verbally facile impressions, which can be misleading to an unknowing evaluator, particularly when brief screening procedures are utilized [9,10]. Furthermore, since no standardized criteria exist for competency judgments, the relative importance of particular deficits (as they might or might not be essential to the competency domain being evaluated) is left up to the individual evaluator [4]. Additionally, inconsistencies in a patient's cognitive functioning over time might compromise the reliability of competency judgments, since a patient may show adequate reasoning and decision making on one day and not another. Such variability is frequently seen in psychiatric patients during exacerbations of their symptomatology or during variable neurological syndromes such as epilepsy or metabolic disorders. Neurorehabilitation patients often display variable functioning as an expression of their neurological recovery or medical complications. Consequently, if the patient is displaying rapid recovery or deterioration, a neuropsychological evaluation of an acute neurorehabilitation patient may provide an invalid estimate of the patient's functioning even after a very short interval. The lack of national or even regional standards for competency determinations disposes an evaluator's assessment to greater vulnerability or accusations of bias than diagnostic judgments for which consensually validated criteria exist. Biases over competency may reflect the evaluator's personal characteristics or may represent more gen-
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eral attitudes and perspectives consistent with his or her training and professional background. Discrepancies across professional groups have been documented in the competency judgments of psychiatrists and lawyers [11]. Since decisions about competency to consent to treatment are usually made by health professionals in clinical contexts and may later be adjudicated in the courts, such discrepancies across professional groups challenge the objectivity these assessments might presume to claim. Finally, criticisms about the limited application of mental status or psychological test findings to everyday functioning have led competency researchers to focus on more specialized assessments which emphasize cognitive demands peculiar to the domain of competency being addressed [1,12]. As will be discussed below, what is crucial in the assessment of competency is the determination of the individual's ability to function in a real life domain (such as in handling finances or providing informed consent for medical treatment). Brief mental status or in-depth psychological testing do not directly assess such capacities and thus may possess limited predictive or ecological validity regarding the decision making capacities under investigation. Structured interviews, questionnaires and simulations have been developed toward this end [3,5,13-15]. While such assessments are usually fairly efficient in addressing domain-specific skills and have the advantage of displaying face validity for competency opinions, they nevertheless remain subject to the inevitable limitations of competency, whose criteria must await development of more widely accepted standards for acceptance. A purpose of this study was to develop an instrument to assess competency to consent to medical treatment among persons in acute neurorehabilitation which would integrate mental status and other domain-specific assessment techniques. 3. Methods
Center For Rehabilitation Medicine. Subjects ranged in age from 18 to 79 and manifested a broad range of educational attainment. Enrolment criteria included subjects' abilities to participate in cognitive testing and a competency interview, as well as their possessing a functional mode of communication (either orally or through use of an assistive device). Table 1 displays demographic and mental status characteristics of the subject sample, including means, standard deviations (S.D.) and ranges of these variables. Mini mental state examination (MMSE) [15] scores ranged from severely impaired to well within normal limits, with the average score being near the designated test cut-off for dementia screening. Sixteen of the 21 subjects sustained traumatic brain injuries. Other diagnoses included unilateral and bilateral cerebral vascular accidents [2], gunshot wounds to the right hemisphere [2], and anoxia following cardiac arrest [1]. Patients ranged from 3 weeks to 9 months in the chronicity of their neurological problems (mean = 4.3 months, standard deviation (S.D.) = 2.2 months), and had all spent at least several weeks in the inpatient rehabilitation setting (mean time since rehabilitation admission = 2.5 months, S.D. = 1.4 months, range = 3 weeks to 5.5. months).
3.2. Procedures A competency interview was administered to these subjects, which was videotaped and then evaluated by a panel of 14 senior professionals in mental health disciplines (psychiatry and neuropsychology), physiatry and mental health law. The 'videotape rater' panel consisted of five attorneys, four mental health professionals (two neuropsychiatrists and two neuropsychologists) and five physiatrists (one of whom also had a law
Table 1 Subject sample (n
3.1. Subjects The subjects in this study were 21 acute, neurorehabilitation patients at Emory University's
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Age Education MMSE
=
21; 13 male, 8 female) Mean
S.D.
Range
35.9 13.6 23.4
13.8 2.8 3.9
18-79 9-20 14-29
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degree). An additional neuropsychologist was impaneled but withdrew his participation after the assessment procedures were developed. The format of the interview consisted of standard mental status testing, augmented by a structured interview and treatment consent simulation. Suggestions and feedback from the panel members combined with extant competency assessment models resulted in the interview format described in Table 2. Although the focus of the investigation was on competency to consent to medical treatment, raters were asked to judge each patient's competency in six domains (ability to make medical
decisions, execute contracts, to serve as a parent, to make day-to-day financial decisions, to act so as not to endanger his or her welfare, and to stand trial). Following their independent reviews of the videotape, the panel raters offered their competency judgments (yes or no) in these six domains, as well as any additional comments in writing. Videotapes were mailed to raters one or two at a time over an interval of months with the intervjews usually lasting from 45 to 60 min each. Competency ratings were also obtained independently from each member of the subject's inpatient rehabilitation team with ratings requested at the same time the video was made.
Table 2 Competency assessment Preliminary content •
•
•
Discuss patient's premorbid functioning and relevant history (social, educational and vocational information; pre.existing physical or psychological problems; psychiatric diagnosis; learning disabilities; legal problems; general social history) Discuss patient's present medical condition (computerized tomographic or magnetic resonance imaging findings and severity indices); chronicity and medical course; current medical treatment, including rehabilitation therapies and goals; rehabilitation progress; length of stay determination; prognosis, including likely post·discharge disposition Mini mental status examination [15]
Structured interview Personal information What happened to you? Why are you here? What do you do here? What are you working on? What are your deficits? What do you expect from treatment/recovery? Treatment information Who is working with you? What are you working on in therapy? What do you wish to gain from therapy? What are your treatment goals? Are you making progress? Who makes decisions about what treatments you will have? What do you think would happen if you refused a certain treatment? Are there any risks associated with your treatment? Are there any benefits associated with your treatment? Are there any alternative treatments to the ones you are now getting? Do you have any problems here that aren't being taken care of? Are you taking any medications? What kind(s)? How much? Do you want to be here? Emotional adjustment How are your spirits/mood? How does that affect you and your progress? How do you feel about therapy? How is your family coping'? Do members of your family agree with your treatment plan? How does your disability affect you? How does your disability affect your family? What is the plan after discharge? What do you expect to be doing 5 years from now? Are there any questions you have? What would you do with $10000? Hypothetical scenario Present (hypothetical) problem. Describe treatment procedure. Explanation of risks, benefits (including probabilities), and treatment alternatives. Patient is asked what he/she would do in that situation, why, and to review the expected risks, benefits and alternatives.
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Such ratings were completed within days of the videotaping. These ratings were made by team members on the basis of their day-to-day experiences with the patient but without their having viewed the videotaped interviews. The patient's treatment team typically consisted of up to nine members: a physiatrist, primary nurse, neuropsychologist, occupational therapist, physical therapist, nutritionist, recreation therapist, social worker and speech pathologist. The number and identities of team members frequently changed. 3.3. Measures 3.3.1. Construction of the competency assessment fonn
The videotaped interviews included initial information regarding the patient's functioning premorbidly and since the onset of the neurological disorder. This review included social, educational, and vocational information, reports regarding any pre-existing physical or psychological problems, including substance abuse, psychiatric diagnosis, learning disabilities or other deVelopmental issues, legal problems and general social history. The nature of the patient's medical problem(s) was then described to the videotape raters, including specifics regarding CT or MRI findings and indices of severity of injury (e.g. duration of loss of consciousness and presence of medical complications). The patients' course of medical treatment was reviewed as well as details of their rehabilitation program and progress. Length of inpatient stay was reported as well as the therapy team members' projections of future services and needs. The subjects' physical mobility was graphically displayed on the videotape as subjects were shown entering the room for the competency interview. Informed consent for participating in this research project had been obtained both from the patient and a responsible family member prior to the videotaping, but the purpose and nature of the research investigation was reiterated on the videotape itself with the consent form placed in front of the patient. This maneuver reoriented the subjects to the situation and purpose of the
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interview, as well as documenting their consent and any questions or reactions they might have. Subjects were then administered the mini mental state examination [15], which is a mental status assessment instrument widely utilized in clinical and research settings. 3.3.2. The structured interview
At this point, a structured interview whose content is depicted in Table 2 was conducted. The interview consisted of questions regarding the patient's medical problem, deficits, treatment received and short and long-term expectations regarding recovery. These questions closely matched information provided previously on the videotape about the patient's medical course. Thus, videotape raters were able to contrast the patient's recollections and opinions with those documented in his or her medical history. Patients were then asked for their judgment and rationale about what they would do with $10000. The final component of the videotaped competency evaluation consisted of a simulated informed consent scenario. In each instance, the treatment proposed was a hypothetical surgical scenario which had been proposed by the patient's attending physiatrist as a procedure which might be necessary in the patient's future. Discussion of this hypothetical treatment was undertaken. A written list was given to the patient, in writing and orally, describing the nature of the medical problem of concern, the surgical procedure proposed, and its purpose, risks and benefits, and treatment alternatives. The risks and benefits were assigned percentage probabilities for each outcome. Patients were asked to decide what they would do in that situation, as well as their reasoning for that judgment. They were also asked to review the risks and benefits of such a procedure as well as the available alternatives (the written list was within their sight for review). 4. Results 4.1. Inter-rater reliability
The videotape and treatment team raters were asked to rate the subject as either competent
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Banja j NeuroRehabilitation 6 (J 996) 123-132
(yes) or incompetent (no) in the six domains cited above. The current study focuses on their estimates of competency to consent to medical treatment. In order to recommend some degree of uniformity or commonality in understanding 'competency' to consent to medical treatment, raters were asked to read Roth, Meisel and Lidz's classic paper, 'Tests of Competency to Consent to Medical Treatment' [16]. Raters were also given the opportunity to explain their ratings in an open ended or discursive way. Competency ratings of both team members and panel raters were found to show significant testretest reliability. Kappa statistics for team and panel members, respectively, were 0.73 and 0.50 (P < 0.0001 in both cases). Inter-rater reliability was demonstrated across professional groups rating the videos. As shown in Table 3, pairwise comparison of the ratings of the videotapes across professional disciplines showed no significant differences in competency to consent to treatment (Friedman analysis of variance of ranks X 2 = 2.07, df = 2). Although physiatrists were the most likely of panel members to call patients incompetent, this did not reach statistical significance in group comparisons of the panel. There was a pattern suggesting greater conservatism (i.e. more likely to evaluate a patient as incompetent) in judgments by the physiatrists and mental health professionals, which was borne out in subsequent ratings comparisons between panel and team members.
Videotape evaluators displayed more frequent ratings of competency than those obtained from team members who based their assessments on their daily observation of the patient. In fact, the greater frequency of the videotape panel to more often rate patients competent held for every competency domain assessed (Wilcoxon Signed Ranks Test T = 10.5, P < 0.01 for all domains combined, T = 32, P < 0.01 for competency to consent to medical treatment). This discrepancy between the videotape raters and the treatment team was consistent regardless of the professional discipline of the panel rater. Panel physiatrists rated patients as significantly more competent than did team members (including the team physiatrist) regarding the patient's competency to consent to medical treatment or when ratings were summarized across competency domains (T = 31, P < 0.05 and T = 12, P < 0.01, respectively). Not surprisingly, discrepancies between team and panel ratings were most common among patients who displayed cognitive functioning at or near normal levels on neuropsychological measures. Treatment team ratings showed significant discrepancies across domains of competency with competency to consent to medical treatment being rated most liberally and competency to execute contracts being rated most conservatively ( X 2 = 26, df = 5, P < 0.001). The hierarchy of ratings for the team and panel are displayed in Table 4. The panel's ratings failed to differ significantly across competency domains.
Table 3 Pairwise comparisons of professional panel ratings (Wilcoxin signed ranks test t values) Competency domain:
Treatment Contracts Parent Finances Self Trial All combined aP
< 0.05 bP < 0.02 CP < 0.01
Professional groups compared Law jmental health
Mental healthjphysiatry
Law jphysiatry
0.71 NS 0.94 NS 0.60 a -2.64 b 3.34c -0.62 NS 0.78 NS
-1.64 NS -2.38 a -0.57 NS -1.61 NS -1.02 NS -5.09 c -3.36 c
1.54 NS 2.93 c 1.09 NS -0.32 NS
3.53 c 4.15 c
3.31c
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Table 4 Contrasting prioritization of competency ratings between treating team and videotape panel Team
Panel
Treatment Self Parent Trial Finances Contracts
Self Trial Treatment Finances Contracts Parent
P
P
< 0.001
< 0.10
Despite the statistical reliability of the videotape panel ratings of subjects' competency to consent to treatment, some competency interviews elicited considerable disparities among the videotape raters themselves. Moreover, in only four of the 21 interviews did the videotape panel achieve total consensus. In fact, only one subject was rated incompetent by all raters on the panel and team despite the severity of cognitive impairments in many of the subjects. The only competency domain that did not evidence statistically significant variation among all three groups of videotape ratings was competency to consent to medical treatment (see Table 3). Since one goal of this research project was to develop an interview format that would yield information whereby a reliable competency evaluation of that very domain might be secured, the reliability of the interview format discussed appears to have some merit. Indeed~ the fact that the interview format presented here was primarily aimed at competence to consent to medical treatment might explain why discrepant ratings in the remaining competency domains occurred between treating therapists and the professional groups on the videotape panel. In effect, this study supports contemporary recommendations that competency assessments should address those functional tasks essential to the competency domain under investigation [1]. 5. Discussion What is striking about these findings is the statistically significant difference between the
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videotape raters assessment of competency to consent to treatment versus those of the subjects' treatment teams (who did not view the videotaped interview). Reasons for this difference could not be specified conclusively, although some hypotheses might be considered. For instance, team members might have understood the competency criteria they employed in a manifestly different way from the videotape raters. Or, by virtue of their intimate and daily interaction with patients, the treating professionals were privy to manifestations of the patient's decision making that could not be captured in a formal interview but that were profoundly revelatory of the quality of the patient's decision making. On the other hand, perhaps the consistently more conservative ratings of the patient's treatment team are attributable to a more paternal attitude that inclines them, either consciously or unconsciously, to anticipate the patient's incompetence. This might also explain the similarly conservative ratings among the physiatrists who served as videotape raters. Reasons as to why disparities existed among the videotape raters might point to certain limitations implicit in any type of competency assessment that lacks a gold standard or rules for interpreting the interviewee's responses. No universally adopted guidelines exist that stipulate how many questions an interviewee must answer correctly or how much memory, insight, reasoning, and so forth, a competent subject should be able to demonstrate. Furthermore, an occasional tendency was suggested among both our videotape raters and treatment team members to generalize about a person's competence on the basis of one or two discrete behaviours manifested during the assessment. One physical therapist, for example, declared a patient incompetent to care for himself because he consistently disregarded her instructions to keep his mouth closed during aquatic therapy. In another instance, a videotape rater pointed to a patient's confabulating the incidents surrounding his injury as indicative of incompetence in four of the six domains we studied. Perhaps related to this tendency of generalization was another tendency among videotape raters
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(and perhaps treatment team members) to pay selective attention either to the patient's reasoning and decision making targeted to his or her immediate clinical condition versus attending to the patient's abstract reasoning and information processing abilities. In one instance, where two physiatrists differed dramatically on their competency assessments, the one who deemed the patient competent pointed to the patient's understanding of the concrete risks and benefits attending the hypothetical treatment scenario along with his justification for having the surgery performed (i.e. 'I'll be able to move my arm better'). The other physiatrist who judged the patient incompetent noted he exhibited 'significant abstract conceptual deficits ... general inability to expand upon topical areas in a normal fashion ... (and an inability to) comprehend the implications of the interview questions.' In the absence of interpretational rules that determine the legitimacy of inference - and any competency evaluation will make an inferential leap as to whether an individual is competent or not based on certain discrete measures or observations - disparity among competency evaluators may well be the norm rather than the exception. A final, and utterly fundamental issue inherent in conducting a competency evaluation is the evaluator's attitudes towards risk-taking, both as it pertains to the evaluator as well as the patient. A declaration of incompetence might appear to assuage whatever fears the evaluator might have about his or her professional liability. Clearly, the patient with reasoning impair~ents is at greater risk (i.e. at higher probability) for making a poor or ill advised decision than his or her reasonably competent counterpart. But how serious must an impairment be before an evaluator deems a subject to have deteriorated to an 'unacceptable' limit of judgmental ability to decide about medical treatment? The degree of risk a competency evaluator is willing to allow a neurologically impaired individual to assume seems to be a thoroughly subjective determination. Again, the absence of standards shifts the resolution of this question to the judgment of the individual evalua-
tor who brings a host of idiosyncratic notions, beliefs and experiences to the assessment process. 6. Conclusion
While certain recommendations follow from this research, it nevertheless raises a host of issues that require further investigation. On the one hand, we heartily endorse the contemporary shift toward conducting ecologically valid competency evaluations. As much as possible, the evaluation should focus on the actual tasks inherent in the competency domain under investigation. Yet, without professional agreement on what those tasks actually are and what level of ability persons should demonstrate in the execution of those tasks, the validity of the competency evaluations can always be challenged. Second, persons are deemed competent unless there are good reasons to believe otherwise. However, the remarkable disparity over competency assessments we uncovered between the patient's treatment team and the videotape raters seems to raise serious questions about the degree to which either: (1) treating professionals inject their own concerns about patient safety into their judgments; or (2) whether a brief competency interview such the one presented here renders an adequate enough glimpse into a patient's decision making so as to enable an objective determination. Third, we were heartened by an absence of statistically significant disparity among our videotape raters regarding competence to consent to treatment. Yet, it is clear that certain patients elicited considerable disagreement among the raters. One wonders about the subject, for example, who four out of five physiatric raters deemed incompetent, four out of five lawyers deemed competent, and about whom the mental health providers were evenly divided; or about another subject who was deemed competent by all the videotape raters, but judged incompetent by eight out of the nine treatment team members. The possibility therefore exists that certain neurological patients present with a unique cognitive profile that elicits markedly heterogeneous reactions
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from rehabilitation providers. Further research might be well advised to identify such patients and investigate reasons for such disparity. The current research program hopes to investigate relationships between client's everyday functioning in a variety of self-care skills (e.g. personal hygiene, learning and following a basic daily schedule, need for assistance in management of medications) and clinician's ratings of competence. This may help clarify deficits considered significant by rehabilitation professionals in such judgments. Such investigations will be important in addressing concerns about the validity of more traditional assessments. Assessments of individuals in more stable chronic phases of neurological disorders would also minimize questions about the role of recovery in confounding competency ratings. The utility of neuropsychological assessment has been championed as an alternative or addition to the competency evaluation process [17]. Further investigation of the relationship between such measures and competency judgments is clearly indicated. Our preliminary review of such data suggests limited correlation, and neuropsychological data will still require the development of consensus guidelines for the types and severity of scores relevant for judgments across domains of competency. Although legal judgments of competence are subject to limitations similar to those discussed above, future research will need to address evaluation systems and professional rating patterns for individuals who have been adjudicated competent and incompetent. This may serve as a further assessment of rating validity and can permit elucidation of the strengths and weaknesses of current legal guardianship mechanisms. This raises the last point of who was really being studied in this research: the competency of neurological patients to consent to medical treatment or the judgmental behaviours and tendencies of individuals trained in physiatry, mental health or the law. To the extent that a competency assessment reveals more about the judgmental idiosyncracies of the interviewer than the decisional ability of the interviewee, it can hardly boast reliability or validity. If, on the other hand,
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the line between competence and incompetence is not a bright one but will occasionally permit ambiguity and room for disagreement, then all a competency evaluation and its interpretational guidelines can ever hope to accomplish is to elicit a respectable consensus among professional users. The interview format and results described here may have witnessed some success in that direction, but the quandaries it raises seem to suggest additional study and reflection. Acknowledgements
The authors would like to express their gratitude to two consultants - Thomas Grisso, PhD, a forensic psychologist, and Arnold Rosoff, a professor of law specializing in health care - who provided input towards the content formation of the interview. References [1]
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Hommel PA, Wang L, Bergman JA. Trends in guardianship reform: implications for the medical and legal professions. Law Med Health Care 1990;18:213-226. Appelbaum PS, Grisso T. Assessing patients' capacities to consent to treatment. N Engl J Med 1988;319:1635-1638. Spar JE, Garb AS. Assessing competency to make a will. Am J Psychiatry 1992; 149(2): 169-174. Appelbaum PS, Grisso T. The MacArthur treatment competence study. I. Law Hum Behav 1995;19:105-126. Searight HR. Assessing patient competence for medical decision making. Am Fam Physician 1992;45:751-759. Grisso T. Evaluating Competencies: Forensic Assessments and Instruments. New York, Plenum, 1986. Venesy BA. A clinician's guide to decision making capacity and ethically sound medical decisions. Am J Phys Med Rehabil 1994;73:219-226. Rosoff AJ. Informed Consent: A Guide for Health Care Providers. Rockville, MD, Aspen, 1981. Auerbach VS, Banja JD. Competency determinations. In: Stoudemire A and Fogel BS, eds. Medical-Psychiatry Practice. Washington, DC, American Psychiatric Press, 1993;515-535. Varney NR, Menefee L. Psychosocial and executive deficits following closed head injury: implications for orbital frontal cortex. J Head Trauma Rehabil 1993;8:32-44. Kaufmann CL, Roth LH, Lidz CW et al. Informed consent and patient decision making: the reasoning of law and psychiatry. Int J Law Psychiatry 1981;4:345-361.
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Haffey WJ. The assessment of clinical competency to consent to medical rehabilitative interventions. J Head Trauma Rehabil 1989;4:43-56. Grisso T, Appelbaum PS, Mulvey EP, Fletcher K. The MacArthur treatment competence study. II. Law Hum Behav 1995;19:127-148. Grisso T, Appelbaum PS. The MacArthur treatment competence study. III. Law Hum Behav 1995;19:149-174. Folstein MF, Folstein SE, McHugh PRo 'Mini-mental
state': A practical method for grading the cognitive state of patients for the clinician. J Psychiatr Res 1975;12:189-198. [16] Roth L, Meisel C, Lidz C. Tests of competency to consent to medical treatment. Am J Psychiatry 1977;134:279-284. [17] Callahan CD, Hagglund KJ. Comparing neuropsychological and psychiatric evaluation of competency in rehabilitation: A case example. Arch Phys Med Rehabil 1995;76:909-912.
