Introduction
The issue of legal responsibility in light of the effects of mental disorders on an individual’s ability to tell right from wrong have caught the attention of every one since 1980s. These disagreements have turned often into legal complaints (Ellen Annandale, 1998). These disagreements turned legal complaints lead to long medical litigations. Rights for advance directives and doctrines such as informed consent have created a new approach to medical litigations. With increased patient awareness of the health care delivery situations, media flare up and public opinions, medical practice has become more accountable today and there is a radical departure from the traditional medical practice which draws upon the personal experiences, case studies and research of the physician and not the health care delivery system as a whole entity.
Especially the patient’s competence in giving informed consent has received enough attention. Informed consent refers to legal rules that prescribe behaviors for physicians in their interactions with patients based on the ethical doctrine rooted in the value of autonomy that facilitates patients right to self-determination. It is an interpersonal process whereby practitioners interact with patients to select an appropriate course of action. Informed consent means that tests, treatments and medications have been explained to the person, as well as outcomes, possible complications and alternative procedures before the treatment and his consent is documented. There is no second opinion on the fact that only a competent individual can give an informed consent. But the concept of competence is broad with moral, medical and legal implications. Since, a mentally unstable patient is prone to situations when he is not in control of the situations, it is first important to determine his competence to give consent. It is important to see if he is competent or marginally competent or incompetent. This can be done by the application the classical 5 tests for testing the level of competence of this case. The 5 tests to determine the competence test the following:
- Reasonable outcome by which the individual is declared competent if consent seeks a reasonable outcome.
- Rational reasons by which the individual is declared competent if consent follows a rational process.
- Ability to express consent or refuse consent in spite of reasonable outcomes.
- Ability to understand by which the individual is declared competent if one has the ability to knowingly act on information given in the process of obtaining consent.
- Ability to actually understand by which the individual is declared competent if one actually understands the information presented.
Informed consent in a competent individual is an expression of his right heeding to his/her wishes or desires. In an incompetent individual expression of his/her right is done in their “best interests” from a psychological and medical viewpoint. However, there seems to be a group of individuals who are marginally competent. This group seems to lie in-between the two extremes of competence and incompetence and competence in this case thus appears to be a matter of degree. Marginal competence seems to occur in individuals in adolescence where competency is still in the developmental stage thus bringing age factor into the argument. Mentally retarded persons who have some understanding of the reality and are able to express their wishes and desires can also be considered marginally competent. Mentally ill individuals whose illness has not completely impaired their understanding and capacity to express their wishes and desires are also considered marginally competent. These individuals are not incompetent though they suffer from specific deficits due to destroyed faculties. These marginally competent individuals make a significant group and recognizing the existence of such group of marginally competent individuals will help define competence better. Competence should be empirically and morally defined rather than just by one of them. This is because of the fact that it carries the rights of an individual. A Medical approach to competence is broader in spectrum than a legal approach. This is because of the fact that always a functional test is used to test the competency, which gives a better understanding of the individual’s functioning in the society, work history and interpersonal relationships than a legal approach which focuses on specific legal contexts like understanding of a particular transaction, legal contracts and consequences. The legislations in USA encourage people to prepare advance directives in which they indicate their wishes concerning the treatment and care to be provided if they become incapacitated. Advance directives’ are legal documents that specify a patient’s wishes before hospitalization and provide the necessary information for tough decision-making situations. The Advance directive is usually composed of a Living will which is a medical directive issued by an individual with sound mind. This documents treatment preferences and provides instructions of care. This is often accompanied by a ‘Proxy directive’. A Proxy directive is the appointment and authorization of another individual to make medical directives on behalf of the person who created an advanced directive.
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