DEFINITIONS
Competence is a legal term. Competency decisions transpire within the judicial system.
Only a court can determine that a patient is incompetent. All adult patients are considered
competent unless specifically proven otherwise. Physicians can determine whether or not a
patient has the capacity to understand his medical condition.
The physician makes a determination of the capacity of a patient to comprehend her
medical problems based on whether there is an organic delirium due to a medical condition
such as a sodium problem, hypoxia, drug intoxication, meningitis, encephalitis, or a
psychiatric disorder. These determinations are based in large part on a neurological
examination testing memory, comprehension, reasoning, and judgment. Any physician can
make this determination. The physician does not have to be a psychiatrist. A psychiatrist may
be useful in rendering decision-making capacity determinations in cases that are complex or
equivocal. If the patient obviously does or does not have the capacity to understand, a
psychiatrist is not needed.
MINORS
By definition, a minor is a person under the age of 18. With some exceptions, minors are
generally not considered competent to make their own decisions. Only a parent or a legal
guardian can give consent for a minor. Neighbors, aunts, uncles, and grandparents cannot
give consent for treatment of a minor. This rule does not cover life-threatening or serious
emergencies. Consent, is always implied for emergency treatment. A physician should not
withhold blood or surgery in a life-threatening accident just because the parent is not present.
For example, a 10-year-old boy accidentally runs through a glass window at
school and lacerates the radial artery. His teacher brings him to the emergency
department. The boy is bleeding and needs both a blood transfusion and surgery to
correct the defect. What should you do?
Emergency treatment of a minor does not need express written consent. Parental consent is
implied Saying that you had to ask another person such as the teacher, the principal the
school nurse, the babysitter, or the grandparents for consent before giving emergency
treatment would be the wrong answer. Seeking a court order is also a wrong choice in an
emergency because it delays the treatment and because in an emergency it is implied that the
parents would consent if they were there.
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Partial Emancipation
Although only a parent or guardian can give consent for procedures and therapies for a
minor there are some exceptions to this rule in the areas of prenatal care, contraception
sexually transmitted diseases (STDs), and substance abuse. The mature minor is generally
one above the age of 15, although this varies by state. USMLE will not make hairsplitting
distinctions like giving you a 14-year-old the day before her 15th birthday. The case on the
exam will be clear.
For example, a 16-year-old girl comes to see you in clinic to discuss contraception.
She is generally healthy but is not accompanied by a parent. What should you do?
In all cases like this involving prenatal care, STDs, contraception, HIV and substance
abuse the answer should be to treat the patient. Saying that you must notify the parents, get a
court order, seek legal counsel, refuse therapy, or to go to the ethics committee are all
incorrect answers. These interventions are not necessary. Society has an interest in
preventing unwanted pregnancy, so it is considered less harmful to treat without parental
notification than it is to take the risk that a teenager will get pregnant and need an abortion
later.
Abortion in a Minor
The rules on parental notification for abortion are less clear because there is no national
standard. Some states require parental notification and some don’t.
For example, a 16-year-old girl comes to see you in her first trimester of
pregnancy. She is seeking an abortion. What should you do?
In this case, there is no clear answer about whether or not the physician should notify the
parents. There is no clear national standard and it depends upon the state you are in. The
most likely right answer will indicate the need to encourage the child to notify the parents
herself, which would be best. So the correct answer choice will say something like
“encourage discussion,” “counsel her to tell the parents herself,” or “suggest a family
meeting.” On the ethics questions for USMLE, if there is a choice that says to discuss,
confer, meet, or have voluntary notification,
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legal standing of emancipation to be fully valid. Only answer “court order,” “judicial
intervention,” “court trial,” or “seek legal resolution” if the case represents disagreement or a
lack of consensus in the stem.
Limitations on Parental Right of Refusal for Minors
Although a competent adult can refuse any medical care she wishes, the same right does
not automatically extend for parents concerning their children. Parents cannot refuse lifesaving treatment for their child based on religious belief. The state has an interest in the
welfare of the child that exceeds the parental right to deny therapy for the child if the child
might die.
For example, a child is in a motor vehicle accident and sustains head trauma
requiring surgery to drain a hematoma that, if left untreated, will be fatal. As part of
the surgery the child will need a blood transfusion. The parents are Jehovah’s
Witnesses and refuse to give consent for the transfusion. The parents’ stated religious
beliefs are that accepting blood for their child would be a fate worse than death. What
should you do?
If the child needs blood to save his life you must give the blood—even over the objection
of the parents. It may seem contradictory to seek parental consent for a procedure that you
will perform even if they refuse, but in this case, you should attempt to obtain their
permission nonetheless.
Withholding lifesaving therapy for a child is considered comparable to child abuse. The
parents’ right to practice their religion in terms of health care would cover their ability to
refuse a transfusion for themselves, but not for their child.
This ethical concept has only expanded. Parents cannot refuse therapy for children even if
they are severely brain damaged or otherwise developmentally disabled. Society does not
distinguish between individuals based on their relative ‘worth.’ In other words, parents cannot
refuse tracheo-esophageal fistula repair on a patient with Down syndrome just because the
mental capacity and functional ability of the child will be much less than that of a child
without this disease. From this point of view, treatment against parents’ wishes in a lifethreatening situation is equally valid for both a future genius and a child with cerebral palsy
who will not achieve a mental age above 2.
One of the only times parents are allowed to refuse care for their child is when the child is
so ill or deformed that death is inevitable. This is not a true refusal on the part of the parent.
This is really just saying that parents can refuse only the futile care that the doctor shouldn’t
be giving anyway.
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PSYCHIATRIC PATIENTS
A patient’s psychiatric history is intrinsic to the concept of competence and to the patient’s
capacity to understand her medical problems. A patient with the clear capacity to understand
or one who clearly does not have capacity does not need a psychiatric evaluation. However, a
psychiatric evaluation can be useful to help make a determination of capacity in equivocal or
questionable cases.
All suicidal patients are considered to lack capacity to understand because active suicidal
ideation is deemed to be a sign of impaired judgment. In addition, the level of competence
necessary to make financial decisions is different from that necessary for an informed refusal.
In other words, a patient may have a history of bipolar disorder making it impossible for him
to manage his financial decisions. However, the same person might still be considered to
have capacity to refuse treatment. There is a very limited demand placed on patients to
establish capacity to refuse treatments.
CAPACITY TO REFUSE PROCEDURES IN AN OTHERWISE MENTALLY
DISABLED PATIENT
A patient with mental illness or mental retardation that might be considered incompetent
for other areas of life may still retain the right to refuse medical procedures. The criteria to
determine competence in areas of finance are at a higher standard than those for refusing
medical procedures. Your patient might have schizophrenia, mental retardation, or autism to
the point of needing to live in a group home, but that does not mean they are incapable of
understanding medical procedures. This means that an adult with a mental age of 8 or 10 may
still be allowed to refuse medical procedures. Our society is reluctant to strap a patient to his
bed and perform procedures that would be painful or uncomfortable for the patient without
his consent. For instance, certain court cases in the past have allowed a patient with mental
illness to refuse diagnostic procedures even though two out of three of the reasons for the
refusal were delusional.
This is an affirmation of how deep the principle of autonomy goes in the management of
patients. In addition, it shows that beneficence—trying to do the right thing for patients—is
considered less important than autonomy. Autonomy is given more weight in decision
making than beneficence. Autonomy has priority.
A person may meet the legal standard of competence to refuse or accept medical care even
if she is not considered competent in other areas of life, such as financial matters.