84: Informed Consent, Competency, Treatment Refusal, and Civil Commitment

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CHAPTER 84 Informed Consent, Competency, Treatment Refusal, and Civil Commitment


The American legal system is composed of parallel systems of state and federal constitutions, statutes, and courts. The United States Constitution is the controlling body of law, and any law, state or federal, that conflicts with the Constitution will be struck down if challenged. The rulings of the United States Supreme Court, which interprets the Constitution, are therefore controlling on Constitutional and federal law matters. States are free to provide greater protections of Constitutional rights than the Supreme Court interprets the Constitution as requiring, but may not provide less. On purely state law matters, including most civil matters, the decisions of state courts and state statutes are controlling.

Litigation is divided into two general categories: civil and criminal. Civil matters are those in which a dispute arises in which one party claims to have been injured by another, or some other transgression has occurred, that can be remedied by the payment of money (damages) or performance or cessation of certain activities (injunctive relief). Criminal matters are those in which a party has committed an act in violation of a statute, and for which the penalty may be a monetary fine, incarceration, or both. Both civil and criminal trials can be before a judge alone (bench trials) or before a judge and jury (jury trials). In a jury trial, the jury decides the issues of fact, for example, guilty or not guilty, liable or not, and the judge rules on the principles of law, for example, what evidence is admissible. In a bench trial, the judge both rules on the law and is the fact-finder.

In all litigation, the party bringing the action can only prevail by supplying evidence that meets the standard of proof. That standard varies with the type of legal action involved (Table 84-1). In personal injury cases, such as malpractice claims, the plaintiff (the party claiming to have been injured) must prove his or her case by a preponderance of the evidence. That is, the plaintiff must convince the fact-finder that his or her claims are more likely true than not. This is the lowest standard of proof. At the other end is the standard used in criminal prosecutions: the prosecution must prove the defendant’s guilt beyond a reasonable doubt. In other types of cases, such as civil commitment, a standard of proof between these extremes is required: clear and convincing evidence, per the United States Constitution.

Table 84-1 Standards of Proof in Legal Cases

There are two basic types of witnesses: fact witnesses and expert witnesses. Psychiatrists may be called on to serve in either role. Anyone who has firsthand knowledge of events and facts relevant to the case can be asked to serve as a fact witness. Fact witnesses may testify only as to the information they have obtained firsthand; they may not introduce hearsay evidence, that is, information they have heard from others, except under certain limited circumstances. Most important, fact witnesses may not give opinion testimony. Thus, a treating clinician testifying as a fact witness for a patient may testify about his observations obtained in treatment, but may not offer an opinion regarding negligence by a previous treater.1

Where evidence is to be introduced on a subject that is outside the realm of knowledge of the average juror or judge, testimony by an expert witness may be allowed or required in order to meet the burden of proof. To qualify as an expert, a witness must have knowledge of the subject in question beyond that of the average layperson by virtue of education, training, and experience. Unlike fact witnesses, expert witnesses may offer opinion testimony and are generally allowed to use hearsay evidence.1

From time to time, psychiatrists may be asked to serve as either fact witnesses or expert witnesses in litigation matters in which their patients are involved. While a patient can generally insist that the treating clinician provide copies of records and testify as a fact witness, the psychiatrist need not, and should not, serve as an expert witness. It is generally accepted that treating clinicians should not serve as expert witnesses on behalf of their own patients because the two roles are incompatibile.24 For example, clinicians have a fiduciary duty to act in the best interests of their patients, whereas expert witnesses have an ethical obligation to be objective, regardless of the impact on the litigant’s position. In addition, in forming an objective opinion, experts must assess the litigant’s claims against information obtained from collateral sources and be prepared to reject the litigant’s claims. In other words, a treating clinician serving as an expert witness must challenge his or her patient’s version of events, an activity that poses great risk for the therapeutic relationship. Clinicians who agree to serve as experts but who do not follow the proper methodology for conducting forensic evaluations may find their testimony excluded under the rules of evidence.5,6


It is important to keep in mind that the Western notion of individual autonomy is not accepted in all other cultures, and that this has important implications for patient care.7,8

The principle of autonomy has multiple sources in Western philosophy,9 with the Scottish philosopher and economist John Stuart Mill quoted widely in writings about informed consent, treatment refusal, and civil commitment.10 Among Mill’s most quoted passages are the following:

Mill’s libertarian notions had their limitations, however. He did not believe that his principles applied to the mentally ill,11 nor did he believe that the ultimate goal of autonomy relieved the rest of society from an obligation to help the individual choose the course that others believe to be in his or her best interests.

The law has long protected individuals from being touched or otherwise intruded on by others, initially through the common law (case or judge-made law) and later through statutes and regulations. The early English common law (judge-made law or case law), which forms the basis for the jurisprudence of many nations (including the United States and Canada), had well-established principles of trespass, which is now referred to as personal injury or tort law.13 Among the forms of trespass was “battery,” the touching of another person without his or her consent or justification. Battery was at the heart of early malpractice cases.

Battery is just one of many legal principles designed to preserve our autonomy. That principle extends to all interactions among people, including medical treatment. American courts have long recognized the right of individuals to make their own medical decisions.14 This right has been protected in many ways over the years, including the United States Supreme Court’s decision in Cruzan v. Director, Missouri Department of Health, in which the Court declared the right to make individual health care decisions to be a fundamental liberty interest.15

It should be noted that autonomy is only one of four ethical principals considered to be the foundation of clinical care. The others are beneficence, justice, and nonmalfeasance.16 Of these ethical principles, autonomy receives the greatest attention and protection from the legal system, however, and thus will be the focus of this chapter.


The development of the doctrine of informed consent extended the principle of individual autonomy to medical treatment. Both ethically and legally, the purpose of the doctrine of informed consent is to give meaning to individual patient autonomy within the doctor-patient relationship.17 When the patient is unable to provide informed consent, it may be obtained from an alternative decision-maker.

Informed consent is best described as a process in which one person, the patient, agrees to allow another person, the treater, to do something to, or for, him or her. The emphasis in this definition of informed consent is on the process, that is, the interactions between patient and clinician, during which there is an exchange of information and acceptance or rejection of the proposed treatment. The role of forms in the informed consent process is commonly misunderstood. The patient’s signature on a consent form does not constitute informed consent itself; it is merely evidence that the informed consent process occurred.

Informed consent evolved from simple consent, which was one of the two basic defenses to a common law claim of battery. Simple consent required only that the would-be patient explicitly or implicitly agree to treatment by the physician; little or no explanation was required. The move toward requiring more substantive consent was fueled by a number of forces, including increased professionalization of medicine, a decline in religious fatalism, and an increased belief that health could be improved through individual effort and through science and technology.18 Informed consent was a logical result of the civil liberties movement and the shift toward autonomy in medical ethics.

The modern era of informed consent was marked by a series of American court decisions in the middle of the twentieth century; however, it was not an American invention. Like seminal ideas in all fields, the complicated principle of informed consent did not arise suddenly. In fact, like many other enlightened principles, informed consent was a known concept in Ancient Greece, Byzantium, and Rome,19 only to be lost during the Dark Ages and rediscovered centuries later. In 1767, an English court held that a surgeon and his assistant could be held liable for battery after rebreaking a patient’s leg to fix a mal-union, without first informing him of their intention to do so. The court held that “it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation.”20

The following language from Judge Benjamin Cardozo’s opinion in the Schloendorff decision in 1914 signaled the coming of informed consent later in the twentieth century: “Every human being of adult years and sound mind has a right to determine what shall be done with his body.”14 However, the next major decisions in informed consent in American courts did not come until the 1950s and 1960s. In 1957, the California Court of Appeals held in Salgo v. Leland Stanford University, Jr. Board of Trustees that

Subsequent cases held that consent to treatment is valid only if it is an intelligent consent22 that represents an “informed exercise of choice”23 and that failure to obtain that consent constituted professional negligence or malpractice.

In order for consent to treatment to be valid in the eyes of the law, it must be based on a defined amount and quality of information, must be given voluntarily, and must be given by someone who has the legal capacity to consent (Table 84-2).24 The amount of information that must be provided varies by the jurisdiction in which the clinician is practicing. A small majority of states follow the “reasonable professional standard,” which requires the clinician to provide the amount of information that a reasonable professional would provide under similar circumstances. A substantial minority of states use a patient-centered or “reasonable patient” standard, which requires the clinician to provide the information that would allow a reasonable or average patient to make an informed decision. Within the patient-centered school, a smaller group of states apply a standard that is more individualized: what would this particular patient find material in making an informed decision?25 Two states, Minnesota and New Mexico, have hybrid standards.26

Table 84-2 Elements of Informed Consent

From both clinical and risk management perspectives, it is generally the case that the more information provided, the better. The shared decision-making model, which involves open discussion and exchange of information between doctor and patient, is believed by many to epitomize the ideals of informed consent.26 Whatever the jurisdiction, clinicians who provide patients with all of the information listed in Table 84-3 can feel confident that sufficient information has been provided.27

Table 84-3 Important Information to Discuss with a Patient Regarding Consent

Data from Precourt v. Frederick, 481 N.E.2d 1144 (Mass. 1985).

There are limits to the disclosure requirements, even under the materiality standard. In Precourt v. Frederick, the Massachusetts Supreme Judicial Court held that there must be a balancing, an accommodation, among the patient’s right to know, fairness to physicians, and society’s interest that medicine be practiced “without unrealistic and unnecessary burdens on practitioners.”27 In that case, the court rejected a plaintiff’s argument that he should have been warned of a very remote, but real, risk of a medication when the side effect in question had never been reported when used for the treatment in question.

As noted earlier, informed consent is not a universal concept, and individuals from some cultures may find application of the Western model to be inhumane.7,28,29 Clinicians should be aware of this possibility, but remember that the process is ultimately governed by the legal and ethical requirements in the jurisdiction in which they practice. The solution to this potential conflict is to explore the issue with the patient and his or her family. Patients who have the capacity to give informed consent can also waive it and direct the clinician to discuss the illness and proposed treatment with family members.

The second essential element of informed consent is that the consent be voluntary. For the consent to be valid, it must be given voluntarily and free from direct or implied coercion.24,30 Coercion is generally defined as an external force that limits the ability of an individual to make a choice.31 Thus, a homeless patient who is threatened with expulsion from the hospital if he or she refuses a specific treatment has been subjected to coercion. The line between overt coercion and more subtle influences that fall within the range of everyday influences blurs rapidly, however, and draws us into philosophical discussions of free will and personhood.32 For example, consent given by a patient who is subjected to coercion from family members (e.g., “If you don’t take the medicine, we will not be able to have you live at home.”) is generally deemed to meet both ethical and legal standards for valid consent.33,34 Individuals who are totally dependent on their caregivers, such as residents of long-term care facilities and prisoners, may be deemed unable to grant true informed consent to research or treatment due to the coercion inherent in their relationships with those running the institutions.3537 The notion that all individuals in such situations are incapable of truly voluntary consent is open to challenge, however.38

The third and perhaps most critical element of informed consent is that the person giving consent must have the capacity to do so. In the absence of decision-making capa-city, there is no informed consent, regardless of how much detailed information was provided or the patient’s assent to treatment.

It is important to distinguish between the legal concept of competency and the clinical concept of capacity, between global and task-specific competence, and between different specific types of capacity.

In the eyes of the law, all adults are considered competent, giving them status as legal persons. This means that there is a presumption that individuals have the requisite capacity to engage in activities that are necessary and common elements of everyday life, for example, making personal decisions regarding health care and finances, or entering into contracts (such as credit card transactions, marriage, and voting). Only a court can declare an individual to be legally incompetent.39 While evaluation of a patient’s decision-making capacity by a physician or mental health professional is commonly referred to as a “competency evaluation,” the evaluating clinician has no authority to change the patient’s legal status. The clinician’s assessment of the patient’s decision-making capacity, which is then presented to the judge as evidence to be considered in making a judicial judgment regarding competence, is of great importance, however. In the wake of a clinical finding of incapacity, and in the absence of an emergency or other exception to informed consent, clinicians are obligated to obtain informed consent from an alternative decision-maker.

Courts make an important distinction between global and specific incompetence. A declaration of global incompetence strips the individual of status as a legal person, rendering him or her unable to make any of life’s normal decisions. As a result, courts are reluctant to declare someone globally incompetent. Instead, wherever possible, courts will limit declarations of incompetence to specific activities, for example, making decisions about specific treatments. This is consistent with the principal that an individual may be competent to engage in some activities but not in others.

Once an individual is declared incompetent, either globally or with regard to specific decision-making activities, an individual becomes a “ward” and another person is appointed as a guardian to make all decisions on his or her behalf. There is some variation in terminology among various jurisdictions. In some states, a “guardian” is the individual appointed to make decisions related to the person of the ward, while the “conservator” is one who is appointed to control the ward’s financial affairs. In other jurisdictions, for example, California, the individual appointed to make decisions is referred to as a conservator of the person or the estate (financial affairs), and the ward is referred to as the “conservatee.”

Grisso and Appelbaum define incompetence as

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