Method for Assessment of Competency to Consent in the Mentally Ill: Rationale, Development, and Comparison with the Medically Ill
Introduction
The doctrine of informed consent has been widely accepted and the patient’s right to self-determination highly respected, particularly in Western countries. In Japan, the doctrine of informed consent was introduced quite recently. The necessity of doctor’s disclosure of medical information has been discussed since the 1970s. The term “medical ethics” was introduced in the 1980s and the concept of informed consent was increasingly respected in Japan. In 1988 the Ministry of Health issued an interim report relating to the future medical practice in Japan. It said that in view of the introduction of the concept of informed consent, it is desirable to take into account that patients receive satisfactory medical information—purpose, expected effects, and alternative of the proposed treatment—beforehand and that they give consent to the treatment (Iwamori, 1991). It is, however, regrettable that psychiatric patients are exempted from the right to self-determination in medical decision making, by reason of being dangerous or being deemed incompetent.
We argue herein the patient’s right to self-determination in the medical sphere from a legal perspective. The review focuses mainly on the American literature and American cases. We claim that the examination of the patient’s competency is a safeguard of due process. It is worthwhile reviewing the American literature and cases because Japanese legal theories have been much influenced by the American legal theories and jurisprudence, particularly since the 1950s. We also review the literature on instruments of competency testing, and we present the development of a new clinical instrument to assess the patient’s competency to give informed consent. We report data using this instrument and show that, unlike what has been implied by mental health laws in many countries, not all psychiatric patients are totally incompetent. Finally, we offer a justification of the use of such a competency assessment scale in order to protect patients’ due process rights.
Section snippets
Self-Determination in Medical Practice
In Anglo-American countries, the right to self-determination of whether an individual receives a proposed treatment has long been recognized in common law. For example, in the Schloendorff 1 case (1914) in the United States, medical intervention without the patient’s consent was denied. The Schloendorff court articulated that “every human being of adult years and sound mind has a right to determine what shall be done
Self-Determination Versus Interests of the State in Psychiatric Practice
The right to medical self-determination has been protected in private law. However, it is not enough for individuals with mental illness to assert their right to self-determination in health care within the private law sphere, since the legal compulsory commitment is provided by mental health laws. National governments have strong power to commit mental patients, based on legal criteria.
Traditionally, there have been two governmental interests that override the rights of mentally ill people in
The Japanese Mental Health and Welfare Law
Like Western countries, Japan has its own mental health law. The Japanese Mental Health and Welfare Law (MHWL) provides civil commitment when (a) a mentally disordered patient is dangerous to self or others (Article 29) or (b) needs treatment (Article 33). Article 29 provides that when a Prefectural Governor (Chiji), as the result of the medical examination prescribed in Article 27, has deemed that the examined person is mentally disordered, and is liable to injure himself or others because of
Competency Assessment as a Procedural Safeguard
In the United States, however, the notion that the mentally ill are generally incompetent was challenged in the late 1970s. In Rennie v. Klein11 (1978), the court mentioned, quoting Scott v. Plante 12 (1976), and Plotkin (1977), that mental illness is not the equivalent to incompetency, which would render one incapable of giving informed consent to medical treatment. The court continued that “before the
Assessment Devices of Competency
Various devices have been developed to assess patients’ competency to give informed consent to different modes of psychiatric treatment. We will briefly review them.
Appelbaum, Mirkin, and Bateman (1981) constructed the Competency Questionnaire. This is a very simple structured interview schedule to assess competency concerning psychiatric admission.
The Two-Part Consent Form (Roth et al., 1982) is a questionnaire to assess competency to consent to electroconvulsive therapy (ECT). This instrument
Structured Interview for Competency/Incompetency Assessment Testing and Ranking Inventory (SICIATRI)
Based on a literature review, we selected items reflecting each domain of competency to give informed consent and constructed a new 12-item structured interview (Table 1), the Structured Interview for Competency/Incompetency Assessment Testing and Ranking Inventory (SICIATRI; Kitamura & Kitamura, 1993a).
Each item was provided with a brief explanation, standard and probe questions, and three anchor points with definitions (Appendix A). The 12 items are ordered sequentially according to the level
Disclosure Content Check List
Because the patient’s comprehension of the nature of the situation and capacity to manipulate information rationally covary to some extent with the amount and nature of the medical information disclosed by the physician or other health professionals, we developed the Disclosure Content Check List (DCCL) to measure the content of medical disclosure (Kitamura & Kitamura, 1993b). The DCCL items correspond almost identically to the SICIATRI items. The attending physician is required to answer
Ranking Inventory for Competency
To classify patients into different categories of competency, we developed the Ranking Inventory for Competency. This was based on the work of Martin and Bean (1992), who assumed a continuum of cognitive capacity at any point for which the competency level could be allocated. The inventory consists of a set of algorithms that yields five levels of competency: Level 0 indicates complete incompetency, whereas level 4 indicates complete competency (Appendix B).
The lowest level of competency is
Comparison of Medical and Psychiatric Patients’ Competency
We assessed the competency of inpatients in psychiatric and medical wards by using the SICIATRI to see whether there was a difference between them.
The number of psychiatric and medical inpatients were 25 (52%) and 23 (48%), respectively. Male/female ratios were almost the same in the two groups: 9/16 in the psychiatric patients and 13/10 in the medical patients. All the subjects were from Kohnodai Hospital, National Center of Neurology and Psychiatry in Japan. All the psychiatric patients had
Conclusion
In Anglo-American law, a medical patient’s self-determination right has been embodied as informed consent. In psychiatry, however, compulsory commitment is provided by mental health legislation. Psychiatric patients have long been deemed incompetent owing to mental illness itself, but this notion has recently been overridden in cases in the United States such as Rennie v. Klein17 (1978) and Washington v. Harper18 (1990). In the latter, the right to refuse unwanted
Acknowledgements
This research was funded by the Japan Science Society. The authors wish to thank the following co-workers for their contributions to the project: Dr. T. Hayakawa, Dr. K. Matsubara, Mr. T. Sumiyama, and Ms. R. Yasumiya.
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