THE COMPETENCE QUESTION

Western traditions of respect for individual choice, as exemplified for several centuries in Anglo-American law, have protected the right of per­sons to decide for themselves whether to undergo medical treatment (Faden & Beauchamp, 1986).

By the mid-twentieth century, however, traditional approaches to consent to treatment came under greater scrutiny. In a series of cases from 1955 to 1972, the courts formulated a radically different approach that came to be called informed consent (Berg, Appelbaum, Lidz, & Parker, 2001). As it evolved, informed consent came to require three elements:

(a) the disclosure of treatment-relevant information to patients by clinicians,

(b) that the patients' decision must be voluntary, and (c) that the patient must be competent to make the treatment decision (Grisso & Appelbaum, 1998a; Kaimowitz v. Department of Mental Health, 1973). The necessity for informed consent could be set aside only in certain emergency situations (for some treatments). For patients who were incompetent to provide con­sent, typically the decision about treatment would be made by a proper substitute decision maker or by court order.

The competence element of informed consent is the primary focus of this chapter, although it will become clear that questions of competence are not separable from the disclosure and voluntariness requirements. The term competence to consent refers to an individual's legal capacity to accept a proposed treatment, to refuse treatment, or to select among treat­ment options.

Questions of competence to consent may be raised for many types of patients. They may be persons with physical traumas or illnesses requir­ing medical treatment, or they may be persons who require treatment for mental illness. Although mental illness, mental retardation, and degener­ative neurological conditions often precipitate the need for an evaluation of a person's competence to consent, the question may be raised in cases involving no mental illness but rather the presence of significant cognitive deficits related to a trauma or the effects of prolonged illness.

The mere fact of mental illness, disability, or involuntary hospitaliza­tion does not create a presumption of incompetence to consent to or refuse most treatments (Rennie v. Klein, 1982; Rogers v. Okin, 1982). In contrast, the law related to the treatment of minors generally presumes that they are incompetent to consent; yet special statutory provisions and case law recognize several exceptions (e.g., "mature minor," and consent for certain types of treatment: Melton, Petrila, Poythress, & Slobogin, 1997), sometimes requiring a determination of a minor's competence to consent.

The importance of defining competence to consent among these types of patients is underscored by the risks associated with various treatments about which they are asked to decide. In addition to surgical procedures, treatments that often receive special attention in discussions of informed consent include electroconvulsive therapy, psychotropic medication, psy­chotherapy and behavior modification techniques, and elective medical interventions such as sterilization and termination of pregnancy.

Questions of competence to consent to treatment arouse conflicting social values concerning patient autonomy and beneficent protection of patients (Lidz et al., 1984; Faden & Beauchamp, 1986). We value individ­ual freedom to exercise self-determination in matters intimately affecting one's own life, even if one's choices may be perceived by others as odd or unreasonable.

Furthermore, the law's definitions of patients' right to refuse treat­ment, and of the parameters of competence to consent, establish the con­tours of professional responsibility in clinical decisions. These contours in turn define the basis for claims of professional liability for damage. The types of claims for potential litigation in this area are numerous: for exam­ple, a patient's claim to having been competent when he was treated without his consent by doctors who perceived the patient as incompetent to consent; a consenting patient's claim that she was not adequately informed of the treatment risks; or the claim that doctors did not seek appropriate surrogate consent to treat a patient who had incompetently refused a treatment that was needed (Berg et al., 2001). The careful assess­ment of competence to consent, therefore, is of special importance in order to fulfill professional obligations (Grisso & Appelbaum, 1998a).

Finally, the limits and side effects of many medical and psychological treatments (e.g., tardive dyskinesia with prolonged antipsychotic medica­tion) intensify the argument that, whenever possible, patients should be allowed to choose whether they will endure these treatments. In turn, patients' competence to consider the information that professionals give them about the risks of such treatments takes on greater urgency in light of our increased knowledge of the risks.

Law and Current Practice

Legal Standard

As noted earlier, the doctrine of informed consent requires three ele­ments: (a) disclosure of relevant treatment information, (b) voluntariness, and (c) competence of the person giving consent.

The disclosure element requires that patients must be informed of five things (Natanson v, Kline, 1960; Canterbury v. Spence, 1972):

• the nature of the disorder for which treatment is being proposed,

• the nature of the proposed treatment,

• the benefits associated with the treatment as well as the likelihood of their occurrence,

• the risks and discomforts associated with the treatment, and their likelihood, and

• the alternative treatments available (including no treatment), as well as their risks and benefits.

The specific information and disclosure procedures that constitute adequate disclosure in a given case have been judged by three somewhat different legal standards: whether the disclosure represents what the average, reasonable practitioner would provide under similar circum­stances (Natanson v. Kline, 1960); whether the disclosure would be ade­quate to inform the average, reasonable patient (Cobbs v. Grant, 1972); and/or whether the clinician disclosed any information that this specific patient might find relevant when making the treatment decision (see gen­erally, Berg et al., 2001). It is also clear that courts have expected disclosure to occur in a manner that is designed to facilitate patients' understanding (Grisso & Appelbaum, 1998a).

The voluntariness element requires that a patient's consent must not be the product of coercion, unfair persuasions, and inducements (Relf v. Weinberger, 1974). The law has not outlined the specific contours of these conditions. But voluntariness is not in question merely because one is hos­pitalized and therefore dependent on hospital personnel (Perlin, 1989) or because family members may have convinced the patient to make a par­ticular decision (Grisso & Appelbaum, 1998a).

Until the 1970s, relatively little attention was given to identifying legal standards to be employed in determining competence to consent to treatment.

First, courts have consistently made it clear that the mere fact of seri­ous mental illness, mental retardation, or cognitive impairment does not create a presumption of incompetence. One may, in fact, be seriously men­tally ill yet competent to consent to treatment.

Second, the law's fundamental concern is with the effects of patients' mental states on their actual cognitive functioning. In this regard, reviews of the law (Annas & Densberger, 1984; Appelbaum & Grisso, 1988; Appelbaum & Grisso, 1995; Drane, 1984; Grisso, 1986; Grisso & Appelbaum, 1998a; McKinnon, Cournos, & Stanley, 1989; Tepper &

Elwork, 1984) have identified four functional abilities that are relevant. These include the ability to:

• communicate a choice,

• understand relevant information,

• appreciate the relevance of the information for one's own circum­stances, and

• manipulate information rationally.

These legal concepts will be examined further in a later section in which they are translated for purposes of forensic assessment. Courts typically do not apply any one of these abilities uniformly or in all cases; they generally choose from among them depending on the facts of the case and precedent within a particular legal jurisdiction.

Third, whether courts will consider a person competent or incompe­tent to consent to treatment will depend in part on the demands of the particular treatment decision that they face.

Fourth, courts' decisions about competence are influenced by the consequences of the treatment decision (Grisso & Appelbaum, 1998a). For example, greater ability may be required when a patient's decision is very likely to lead to death than when the consequences are less certain or severe. This does not mean that patients automatically should be consid­ered incompetent simply because they are opting for a choice that the court believes is unwise. But a patient whose decision creates a higher level of risk regarding the patient's health is likely to receive greater scrutiny.

Finally, the law presumes that one's competence or incompetence can change. Incompetence is not construed as a static condition, but instead requires periodic reassessment and reinstatement of legal competence status when the patient's capacities have improved.

The law deals with the issue of minors' competence to consent to treatment in a different way. As noted earlier, statutes generally deny minors the right to an independent consent or refusal regarding their treatment, because of presumed incompetence to consent. This has been based not only on legal and social assumptions about the effects of imma­turity on minors' decisions, but also on social values concerning the rights of parents to control the activities of dependent children for whom they are legally responsible. Nevertheless, the law recognizes a number of exceptions (Melton et al., 1997):

• Most statutes recognize the right of consent for a "mature minor," often defined as a child in the later years of minority status who is living independently of parents or other caretakers.

• Most states recognize a child's consent to treatment (independent of parental involvement) for certain problems, such as venereal disease or drug abuse.

• Courts have recognized minors' rights to make certain decisions concerning birth control and termination or continuation of preg­nancy (Melton et al., 1983; Planned Parenthood v. Danforth, 1976).

In these exceptional instances, a child's competence to consent to treat­ment presumably is controlled by the same law of informed consent and competence that prevails in adult cases.

Legal Process

The question of a patient's competence to consent generally will be raised when a treating professional believes that the patient is deficient in the ability to make a competent decision about a treatment that the pro­fessional has proposed or is planning to propose. In many jurisdictions, however, this will not result in a judicial review. Several other resolutions are more common.

First, the professional often will proceed with the proposed treatment if the patient consents, even though the professional may have some doubt about the patient's actual competence to make the decision. In other words, the question of competence simply might not be raised if the patient does not refuse the proposed treatment (Berg et al., 2001).

Second, the treating professional might acknowledge the patient's incompetence or relative incapacity and seek the substitute decision of a member of the patient's family. This is routine, of course, in obtaining par­ents' consent for treatment of children, who for most purposes are consid­ered by statute incompetent to consent. With adults, this approach is most likely to be taken when the patient appears confused or when mental illness is evident and the patient is refusing the proposed treatment (President's Commission for Ethical Problems, 1982), especially when the treatment itself does not present unusually high risks compared to its potential benefits.

Third, treating professionals sometimes attempt to deal with a poten­tially incompetent patient's refusal of treatment by using logical persua­sion, patience, or a prolonged decision process. Lidz et al. (1984), for example, noted that patients' decision-making processes and their actual decisions frequently change during hospitalization. They described cases in which hospital staff, being aware of this variability in patients' deci­sions, raised the proposed treatment option with the patients repeatedly until such time as they were disposed to agree with the proposal.

Finally, the professional might request a review by an institutional ethics committee or other nonjudicial review mechanism (Levine, 1977; Grisso & Appelbaum, 1998a; Veatch, 1977). Alternatively, the patient may ask the nonjudicial review board to rule on a professional's proposal to proceed to treatment against the allegedly incompetent patient's wishes. Nonjudicial review is required routinely in some institutions for cases in which the proposed treatment (which the patient has refused) is highly intrusive, represents a relatively high risk, or involves an irreversible surgical procedure.

If these various nonjudicial approaches to the question are not available, or do not succeed in allowing treatment over the allegedly incompetent patient's refusal, and if the treating professional is intent on providing the proposed treatment, then the professional may seek judicial review of competence. Most states provide for this review either specifi­cally or under their guardianship laws (see Chapter 8). If the court finds the patient incompetent, the court typically will appoint someone—often a family member—Io make treatment decisions for the patient. Various states, however, provide that the court itself may act as the substitute treat­ment decision maker on behalf of the patient.

Competency Assessment: Current Practice

In preceding chapters dealing with other legal competencies, assess­ments for competence have been discussed as relatively formal activities designed to obtain information with which to advise legal decision mak­ers. In contrast, most cases in which patients' treatment decision-making capacities are questionable do not reach judicial scrutiny. As noted earlier, more often they result in clinical decisions to forego or delay proposed treatments, or to seek consent from relatives or authorized nonjudicial review boards. Assessments for competence to consent ultimately may reach a legal forum, and in some states they must for certain purposes (e.g., medication of patients involuntarily admitted to psychiatric hospi­tals). Yet generally they have been "forensic assessments" (in the sense described earlier for other legal competencies) only in those special circumstances or jurisdictions in which judicial review of evidence and declaration of incompetence has been required.

Thus it is not surprising that most evaluations for competence to consent are not formal procedures. Instead, they generally occur in the context of doctor-patient discussions in which a treatment is about to be proposed or when informed consent procedures are implemented (Grisso & Appelbaum, 1998a; Lidz et al., 1984). Thus the treating professional forms an impression of the patient's capacities prior to seeking informed consent (based on overall medical and psychological information about the patient), or the professional evaluates the quality of the patient's actual responses to disclosure of information about the proposed treatment plan. Then, if the case seems ambiguous, the clinician may request a competence evaluation from a specialized forensic mental health professional.

Prior to the past 15 years it was not uncommon to find clinicians bas­ing their competence judgments on global evaluations of mental status, rather than on an evaluation of abilities specific to understanding and weighing treatment options (Grisso, 1986; Lidz et al., 1984). More recent legal and clinical analyses, however, have offered recommendations concerning the specific cognitive or behavioral characteristics of patients that ought to be evaluated when examining competence to consent to treatment, and have provided methods for those evaluations (e.g., see Appelbaum & Grisso, 1988). Many of these recommendations are described in the next section, which examines the translation of the legal construct into psychological concepts. There have been no studies, however, that provide empirical data on "average" or typical practice concerning how competence to consent evaluations are performed.

From Legal Standard to Forensic Assessment

Functional Component

We noted earlier that as a result of two decades of legal reviews of informed consent and competence (Annas & Densberger, 1984; Appelbaum & Grisso, 1988; Appelbaum & Grisso, 1995; Drane, 1984; Grisso, 1986; Grisso & Appelbaum, 1998a; McKinnon, Cournos, & Stanley, 1989; President's Commission for Ethical Problems, 1982; Roth, Meisel, & Lidz, 1977; Tepper & Elwork, 1984), a consensus has arisen con­cerning the specific types of abilities that are legally relevant for patients' participation in treatment decisions. These analyses have identified four types of abilities as constituting the domain of functional abilities that might be related to legal definitions of competence to make treatment decisions. (For more detailed descriptions, see especially: Appelbaum & Grisso, 1988; Appelbaum & Grisso, 1995; Grisso & Appelbaum, 1998a).

ability to communicate a choice. This standard focuses simply on patients' abilities to state a preference, indicating to their caregivers what course of treatment they desire (e.g., see Matter of Conroy, 1985; Matter of O'Brien, 1986; President's Commission on Ethical Issues, 1982). Some patients are unable to state a choice, while others express decisions that are extremely unstable, vacillating from moment to moment to such an extent that treatment cannot proceed in any specific direction.

As a legal matter, the ability to communicate a choice is a "threshold" issue; if patients are unable to express a choice, usually there is no need to consider their status regarding other abilities. On the other hand, if patients have serious deficits in other abilities described below, rarely will they be considered competent merely because they can state a preference.

ABILITY TO UNDERSTAND RELEVANT INFORMATION. The functional ability most commonly applied by courts in weighing matters of competence to consent to treatment is patients' ability to understand the information that is disclosed to them about the treatment decision. This requirement is often overtly derived from contract law (White & Denise, 1991), where it serves as the basis for determinations of competence to contract. Among the conceptual analyses listed at the beginning of this discussion, all have included the ability to comprehend what one is being told about the dis­order, its treatment, and its benefits and risks as a fundamental ability associated with competence to consent to treatment.

ability to appreciate the relevance of information. Many Courts have found that patients were incompetent to consent to treatment because, although they appeared to understand what they were being told about their condition, they did not appreciate the significance of the information for their own situation. Thus, patients may be said to lack appreciation when they understand that their doctors believe they are ill, but they deny that they are ill despite solid objective evidence to the con­trary. In other cases, they may understand that an effective treatment exists, but cannot believe that it is likely to help them. Typically such cases involve persons with delusions associated with psychotic mental disor­ders. While they might show evidence of understanding what they are being told, their delusional beliefs (e.g., about the doctor as an agent of the devil) interfere with their realistic application of the information to their own situation.

ability Tomanipulate information rationally. Some Courts have found that patients were incompetent because they were unable to reason with and process the information disclosed to them about their disorder or treatment, even if they understood it and appreciated its significance for themselves. The focus of this reasoning standard is on the individual's difficulties in weighing multiple treatments, each with different types of benefits and risks, and is most likely to be of concern in more complex treatment decisions or when patients manifest confusion as they proceed to "work with" the information that apparently they can grasp "piece by piece." This circumstance might be found for some persons with develop­mental disabilities, patients who are suffering from specific brain dysfunc­tions, or patients who are highly anxious or confused as a result of recent physical or psychological trauma immediately prior to the situation.

Not all jurisdictions will employ all four of these abilities in weighing matters of competence to consent to treatment. Nevertheless, all of them are important to consider when determining what functional abilities are relevant for forensic evaluations of competence, because one or more of them will be used by virtually all courts.

Causal Characteristic

Legal standards for competence to consent to or refuse treatment do not specifically require that deficits in relevant functional abilities must be a "product" of mental illness. In fact, it is not clear that the law requires any particular explanation for a patient's apparent deficits in understand­ing, appreciation, or reasoning about treatments. Logically, however, explanations for deficits in relevant functional abilities would seem to be a necessary part of assessments for competence to consent to treatment.

For example, imagine that one has assessed a patient's capacity to understand or process treatment-related information prior to undertaking an informed consent procedure. Deficits observed in these capacities might be related to enduring conditions of the patient (e.g., irreversible cerebral damage). On the other hand, they might be related to temporary conditions, such as mental states induced by drugs (self-administered prior to hospitalization), pain related to physical trauma that can be reduced with an analgesic, or bereavement at the recent death of a loved one. A knowledge of these causal conditions might be important in decid­ing whether the patient is in need of a substitute decision maker or whether one might merely delay the consent process (if treatment is not needed for an emergency condition) until the patient's manifest abilities have improved. These possibilities suggest the need for assessment data to illuminate the medical, psychological, and social circumstances of the patient that might account for observed deficits in the patient's under­standing and reasoning with treatment-related information.

Therefore, if patients manifest deficits during assessments of their functional abilities relevant to decision making when confronted with treatment-related information, further assessment may be necessary in order to explore more specific explanations for these deficits. Typically this will involve mental status examination and clinical diagnosis of mental conditions. Typically neuropsychological testing or other more complex assessment methods are not feasible at the time a patient is required to make a treatment decision. On occasion, though, they may be helpful when the decision is of substantial consequence, documenta­tion of competence is critical, and the circumstances allow it—for exam­ple, a person with a history of cognitive deficits who wishes to consent to kidney donation to assist another family member.

There has been some research on the relation between mental illness and the functional abilities associated with treatment decision making. Concerning understanding as a functional ability in consent, a large number of studies have found that persons with mental illness understand alarmingly little about their treatment, such as the medications they are taking or how often they are administered (Appelbaum et al., 1981; Hoffman & Srinivasan, 1992; Jaffe, 1986; Linden & Chaskel, 1981; Norko, Billick, McCarrick, & Schwartz, 1990; Olin & Olin, 1975; Soskis, 1978; Soskis & Jaffe, 1979). These studies, however, do not tell us much about the relation of mental illness to poor treatment understanding, because they assumed rather than demonstrated that patients had been given the information in the first place.

Other studies have controlled for this, for example, by providing standardized treatment information to patients as part of their research design (e.g., Benson, Roth, Appelbaum, Lidz, & Winslade, 1988; Beck, 1988; Irwin et al., 1985; Janofsky, McCarthy, & Folstein, 1992). However, often they did not examine the possibility that their disclosures were overly complex, or that factors other than mental illness might be reduc­ing level of understanding. Although patients' poor understanding of treatment-related information is often due to their incapacities, one must consider that a patient's deficiencies in actual understanding might be a consequence of the manner in which the treating professional disclosed the information to the patient. Thus the causal question might require investigation of the method of disclosure itself. Disclosure variables requiring consideration are the clarity and difficulty level of verbal expla­nations, the length of consent forms, the amount of time the patient was allowed for assimilating information, and the method of disclosure.

A patient might also perform poorly in an assessment of understanding of disclosed treatment information merely as an artifact of the method of assessment. For example, several studies of patients' abilities related to informed consent have examined their understanding of disclosed information at a point in time ranging from days to weeks after the information was disclosed to them (e.g., Barbour & Blumenkrantz, 1978; Bergler, Pennington, Metcalfe, & Freis, 1980; Freeman, Pichard, & Smith, 1981; Kaufer, Steinberg, & Toney, 1983; Morrow, Gootnick, & Schmale, 1978; Robinson & Meray, 1976). Measures of this type assess memory for the treatment information, but not necessarily comprehension of the information at the time that consent or refusal was given by the patient in response to original disclosure.

While reasoning as a functional ability among persons with mental illnesses has not received much research attention, failure to appreciate the nature of one's own mental illness has been studied extensively as "lack of insight" (for a review of these studies, see Appelbaum and Grisso, 1995). Although results have been varied, overall they suggest that denial of illness is a significant feature among many persons with schizophrenia.

It is important to realize, however, that the appearance of a failure to acknowledge that one has a mental disorder (when it is diagnosed by cli­nicians) may arise for reasons other than mental illness, such as differing cultural perspectives. Saks and Behnke (1999) have suggested that beliefs should have the quality of "patently false beliefs" in order to be consid­ered a failure of appreciation sufficient to constitute a basis for incompe­tence. Their concern, which is generally recognized in the literature, is that persons with beliefs that are simply different from those of the treat­ing professional (not associated with mental disorder) should not be considered a sign of incapacity to decide about treatment. Distinguishing "patently false (delusional) beliefs" from merely idiosyncratic beliefs is sometimes important in satisfying the causal questions that will arise when patients appear to "lack appreciation" or "lack insight" with regard to their disorder or treatment options.

Interactive Characteristic

There are three ways in which the demands of treatment situations are relevant for weighing the significance of individuals' functional deficits for treatment decision making.

complexity of the circumstances. Medical and mental health diag­noses, treatment proposals, and risk/benefit situations differ in their com­plexity. Some treatments can be understood by a wide range of patients because of the general population's familiarity with the treatments. Other treatments are more esoteric, experimental, or complex in their proce­dures and implications. In addition, while some treatment situations may be made over a course of time, others require an immediate decision because the illness is rapidly progressing toward a potentially fatal outcome. Thus some treatment situations demand a greater capacity for understanding or reasoning in order for a patient's decision to meet criteria for the competence element of informed consent.

SERIOUSNESS of potential consequences. Some illnesses and treat­ment situations are more consequential than others. The degree of ability that is required to decide about a treatment that can be characterized as "high benefit, low risk" may be less than the degree of ability required for deciding about a high risk treatment that is of uncertain benefit. From time to time the law has recognized that mental patients may be compe­tent to deal with some treatment decisions (e.g., medication: Rennie v. Klein, 1982) but not others (e.g., psychosurgery: Kaimowitz v. Department of Mental Health, 1973).

assistance as compensation. External assistance for a patient during the treatment decisionmaking process may sometimes compensate for deficits in relevant functional abilities, thus reducing the argument for a finding of incompetence. Some patients are fortunate to have relatives or friends who can assist them, cognitively and emotionally, in thinking through the treatment decision. Sometimes it is possible to give a patient time to recover from the initial anxiety associated with the diagnosis of the disorder, or to talk to other patients who have had to make a similar decision. When ways might be found to compensate for the patient's functional deficits, this places less demand on the patient's own abilities, thus increasing the possibility that the patient's abilities will better match the demands of the situation (Grisso & Appelbaum, 1998a).

Therefore, it is helpful if assessments for competence to consent to treatment can describe the nature of the treatment situation, in ways described above, and to consider these demands in relation to the degree of the patient's decision making abilities. The congruency or incongru­ency between these two factors offers an interactive perspective that would assist courts or hospitals in their judgments about patients' compe­tency in relation to specific external demands. Possible ways to achieve these descriptions will be raised in the last section of this chapter.

Judgmental and Dispositional Characteristics

In the five chapters preceding this one, each of the areas of competence required a legal judgment that individuals' circumstances and abilities met the law's standards for incompetence. Only in this way could certain individuals' fundamental rights and privileges be set aside in order to execute a disposition that would protect them (e.g., guardianship) or would recognize the important needs of others (e.g., of children, in cases of termination of parental rights because of incompetence).

In this respect, most determinations of patients' competence to consent are different from determinations of other competencies. Most patients who are treated as incompetent to consent do not seek (and are not pro­vided) judicial review of the decision (Grisso & Appelbaum, 1998a; Lidz et al., 1984; President's Commission for Ethical Problems, 1982). Hospital personnel often make the decision, either on their own or on the advice of a nonjudicial review committee. Determination Ofpsychiatric patients' incompetence to consent to or refuse various treatments is more likely to come under judicial scrutiny as a result of laws that specifically require it (see this chapter's introduction and "Legal Standard"). In the past, how­ever, courts tend to have viewed patients' competence to consent prima­rily as a medical question controlled by professional rather than legal standards (President's Commission for Ethical Problems, 1982).

This perspective often has encouraged medical and mental health professionals to make judgments about patients' competence to consent to treatment. The judgments that must be made are similar to those made by legal decision makers in other areas of competence, in that the decisions require a sense of fairness and a recognition of the importance of basic rights of self-determination, balanced against the patient's best interests in terms of medical and mental health treatment needs. Often a patient's need for a particular treatment is not absolutely compelling, but instead can be expressed as preferable to some degree by medical or men­tal health standards. Similarly, many patients are not grossly deficient in consent-related abilities, but instead manifest degrees of understanding and reasoning capacity. Determining the degree of treatment urgency that will outweigh the refusal of a patient with a particular degree of capacity requires a moral judgment. State legislatures and courts, of course, have made these judgments a matter of law in certain jurisdictions, or for certain types of treatments when an allegedly incompetent patient has refused them. Yet in many cases it is the responsibility of health and mental health professionals to make this judgment.

Assessment data related to the question of a patient's competence to consent should not be expected to make these judgments for us. Assessment tools may provide standardized information that can clarify the extent of a patient's relevant capacities, and they can promote a con­sistent quality of information across competency cases. Yet no particular assessment result will relieve the professional of the responsibility for discretion in dealing with the moral quality of the judgment.