Competence
Situation
M.T., a 60-yr-old man, has been awaiting heart transplantation for 6
months. He has been in the ICU for 1 month since he needed a VAD
for his failing heart. He recently had a stroke, which is a complication
of the device. It left him paralyzed on his right side. He is only able to
answer yes/no questions by shaking his head. He has needed
mechanical ventilation since his stroke. For the past 2 weeks, he has
needed hemodialysis because of renal failure. Recently, when you
suction him, he turns his head away from you and bites down on the
endotracheal tube. Although he does not have an advance directive,
his wife and daughter tell you that, on many occasions before these
events, he expressed that he would not want to live if he lost his
independence. His wife and daughter request to have the mechanical
ventilator withdrawn.
Ethical/Legal Points for Consideration
• Decisional capacity for informed consent related to treatment
decisions involves 4 elements: (1) information provided about
possible treatment options must be understood by patients, (2)
patients must have the capacity to deliberate about the treatment
choices and their consequences, (3) patients’ treatment decisions
must be freely chosen and made without coercion, and (4)
patients must be able to communicate their decisions.
• Legal competence, as determined by the courts, has a low
threshold. The ability to respond to questions by signaling a yes
or no may be enough to prove understanding of the questions,
ability to discriminate between choices, and ability to
communicate choices, providing that the answers make sense
and are appropriate. Review how your state defines legal
competence.
• Next of kin are the legal decision makers in the absence of
advance directives if the patient is unable to make decisions for
himself. Decisional capacity should be tested without assuming it
is absent.
• Some courts have accepted past assertions of preferences, past
behavior, and assertions of their parties as evidence to support
end-of-life preferences in the absence of advance directives.
• Know your agency’s policies and the local jurisdiction’s laws and
regulations about informed consent and end-of-life decision
making.
Discussion Questions
1. What would you do next given M.T.’s behavior and the
information you obtained from his wife?
2. What are your feelings and concerns about caring for a patient
for whom withdrawal of treatment will result in death?
