Could a competent, adult patient make the wrong decision?  This is not an uncommon issue encountered in the hospital setting. First of all, there is a need to clarify what we mean by a wrong decision. Decisions have to be made at certain points in the course of managing a patient’s condition. Quite often the medical staff has at its disposal several possibilities. So the competent patient is presented with the various options and asked to choose which among them he or she would prefer. The common understanding of the phrase “a patient making the wrong decision” is when the option chosen by the patient is not the one the medical personnel would have picked themselves. Taken to the extreme, a competent, adult patient refusing treatment or any medical intervention whatsoever would very well be interpreted as a wrong decision. This brings us to the question posed at the beginning of this essay. First, I will define competence. Second, I will discuss its significance in relation to obtaining an informed consent. And third, I will address the question above.

The simplest definition of competence is “the ability to perform a task.”[1] From this definition it is important to note that an individual’s competence is directly correlated with the specific task at hand. And in the medical setting this usually pertains to a patient’s competence to make decisions regarding his or her treatment. It is necessary to point out that strictly speaking, it is the court system that evaluates competence/incompetence while the health care professionals determine capacity/incapacity for decision-making. However, these two terms end up being used interchangeably since “this distinction breaks down in practice.”[2]

The determination of an adult patient’s competence is essential in the process of obtaining an informed consent because decisions made by patients who have been declared incompetent are considered invalid while those made by competent individuals would be acceptable. The concept of informed consent relates to two important aspects. The first is that it meets the requirement of getting consent from patients prior to any medical procedure be it diagnostic, therapeutic, or research. And secondly and more relevant to this discussion is that an informed consent represents a person’s “autonomous authorization of a medical intervention or of participation in research.”[3] Clearly competence and the bioethical principle of autonomy are linked inseparably. Competence is a necessary requirement for a person to exercise his or her autonomy.

What then are the criteria that need to be met in order for an adult patient to be declared competent?

(1) The patient should be oriented to time, place, and person. It is possible that a patient could be oriented at certain times and disoriented at other times. Thus it is necessary to continuously track the waxing and waning of the patient on the chart since this could be a crucial element if ever something wrong happens and the case ends up in court.

(2) The patient should understand relevant information. Does the patient understand the basics of the procedure that is being suggested? We have to acknowledge the fact that an average patient would be hard pressed to grasp the medical and technical details of the procedure especially when the medical staff tends to use highly scientific terms when talking with the patient. But a general understanding of the procedure should be acceptable.

(3) The risks and benefits of the various options should be clear to the patient.

(4) The consequences of all options – including the refusal of any treatment – should be clearly understood by the patient as well.

(5) The patient should be able to clearly and voluntarily express (verbally or otherwise) his or her preference. Any sign of coercion or involuntariness would be a red flag.

An adult patient’s competence then enables him or her to give a valid informed consent. As an autonomous individual and having been presented with the various options and their respective risks and benefits, the competent patient is then requested to make a choice. It is the obligation of the medical staff to respect the patient’s autonomy by respecting whatever decision he or she makes.

Now we are back to the question: Could a competent, adult patient make a wrong decision? It is a fact that sometimes medical personnel get so frustrated when a patient makes a choice that is not to their liking. Some have resorted to requesting a psychiatric consult. If they truly have some sound basis for doubting the competence of the patient and just want a confirmation from a psychiatrist, then this seems to be acceptable. They should be reminded that they could also ask their colleagues for a second opinion on this matter. However, if the motive behind the psychiatric consult is to find a way to declare the patient incompetent so they could then convince the relatives, or whoever the surrogate decision-maker would be, to choose their preferred option then this action is not only unacceptable but smacks of paternalism. And in so doing, the patient’s autonomy is not being upheld. If the medical personnel could not in good conscience carry out the choice of the patient, they still have another option – that of passing on the care of the patient to another health care professional. A physician can never abandon the patient so he or she is still responsible for the patient’s care until another physician has accepted this transfer or the patient has decided to leave AMA or against medical advice.

Being human means being imperfect. We make mistakes every now and then. So long as an adult patient has been declared competent then she is merely exercising her autonomy every time she makes an informed decision.

[1] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, Sixth edition (New York: Oxford University Press, 2009) 112.

[2] Beauchamp and Childress 111.

[3] Beauchamp and Childress 119.

John is a healthy 45-year-old executive who has an appointment with his family doctor for a routine check-up. He read in the newspaper about a new expensive X-Ray test to detect heart disease called CT angiography. John was not concerned that the test was extremely expensive because he thought his insurance would cover it. He told his doctor he wanted to have the test done. The doctor refused his request. He explained that there is no clinical evidence that the test is of value to patients, like John, who have no symptoms or risk factors of heart disease. In addition, a CT angiogram would expose him to unnecessary radiation. John accepted his doctor’s argument, but he still wanted the test to put his mind at ease. Don’t physicians have a moral obligation to respect patient preferences? Isn’t that what the Hippocratic Oath is all about?

The 2500-year-old Hippocratic Oath has stood the test of time. It is still the most popular pledge made by medical students at the time of their graduation. In part, it states, “I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them”. The oath obliges the physician, based on his ability and judgment, to benefit the patient. This is the principle of beneficence. The Oath also places on the physician the obligation not to harm the patient (“primum no nocere”). This is the principle of non-maleficence. In this case, the physician exercises the principle of beneficence by refusing to order a test, which, in his judgment, is not needed. In addition, he exercises the principle of non-malfeasance because, in his judgment, the test may be harmful to the patient. It would expose him to unnecessary radiation.

Notice that the Hippocratic Oath is subjective. It is based strictly on the physician’s judgment even if his colleagues do not agree. Also, notice that it is based on the physician’s judgment, not the patient’s. The Oath implies that the physician has the experience and expertise to make decisions on behalf of the patient even if his judgment is in conflict with the patient’s wishes, as it is in this case. Thus, the Hippocratic Oath does not support John’s argument that the physician has a moral obligation to order a CT angiogram.

Serious challenges to the Hippocratic Oath began in the 1970s. First, one may challenge the way benefits to the patient are assessed. If CT angiograms were considered the standard of care for all patients regardless of symptoms or risk factors, the physician would be hard pressed to refuse the patient’s request for the test. The objective judgment of the profession would trump the subjective judgment of one physician. However, that is not the case here. At this time (July 2008) there is no objective evidence to support the benefit of this test in John’s case.

Another challenge to the Hippocratic Oath came for the American Medical Association. Although its previous codes were essentially Hippocratic, the AMA changed its code in a dramatic and significant way in 1980. The new version is the first to speak of patient rights. “The physician shall respect the rights of patients, of colleagues and of other health professionals, and shall safeguard patients’ confidences within the constraints of the law”. The 1980 AMA code breaks with the Hippocratic tradition, which does not mention anyone’s rights. From this time onward, the principle of respect for patient autonomy has been on the ascendency.

“Whether respect for the autonomy of patients should have priority over professional beneficence directed at those patients is a central problem in biomedical ethics” (Beauchamp & Childress, Principles of Biomedical Ethics, 2009). In this case John expresses his autonomy right by requesting that his doctor order the expensive test if only to put his mind at ease. The doctor, in turn, applies the principle of beneficence by denying the request because in his professional judgment the test is not indicated in John’s case. Moreover, he applies the principle of non-maleficence by refusing to subject his patient to the danger of unnecessary radiation. How can this conflict be resolved?

The answer to this conflict lies in the principle of distributive justice. Health care spending in the United States is spiraling out of control. New technologies are a major driving force for this increase. The principle of distributive justice refers to an appropriate, equitable, and fair distribution of health care resources. It is not appropriate for a doctor to order unnecessary tests that subject patients to danger. It is not equitable for one person to receive expensive diagnostic testing, merely for peace of mind, while 50 million uninsured Americans cannot afford the costs of basic health care. In addition, it is not fair to burden society with unnecessary costs.

Daniel Callahan, an expert on bioethics, argues that solving the current crisis in our health care system – rapidly rising costs and dwindling access – requires replacing the current “ethic of individual rights” with an “ethic of the common good”. In a similar vein Newsweek columnist, Robert J. Samuelson wrote: “We face a choice between a society where people accept modest sacrifices for a common good or a more contentious society where groups selfishly protect their own benefits.”

Question: My mother is 92-years-old and has lung cancer that has metastasized to her liver and brain. She has been declared incompetent and terminal by her physicians. She has stopped eating and her physicians have asked the family to consider inserting a feeding tube in her to give her nourishment. Are we required to insert a feeding tube?

Answer:

Traditional moralists made a clear distinction between allowing-to-die, which entails foregoing disproportionate means where death is foreseen but not directly intended and direct killing by euthanasia. Allowing a patient to die by foregoing aggressive, non-beneficial treatments is not only morally permissible, but it is treating the patient with dignity and respect. The decision is based on the fact that physiological existence no longer offers these patients any hope at all of pursuing those goods for which human life is the fundamental condition. I would conclude that if the family believes that the feeding tube is burdensome and does not offer a reasonable hope of benefit for their mother, then the feeding tube would not need to be inserted. One option would be to place their mother in hospice or move toward palliative care only.

This position is supported by the tradition of the Catholic Church. The history of the Catholic Church’s position on the ordinary-extraordinary means distinction dates back to the 16th century Dominican moralists. The Dominican moralists, followed the tradition of the Church that states human life is a good but not an absolute good. As a relative good, one’s duty to preserve it is a limited duty. While a person has freedom over his or her life, one is never permitted to directly take one’s life. The issue becomes to what extent is one obligated to preserve one’s life. The traditional understanding of ordinary-extraordinary means remained basically unchallenged until the mid-1900s with the advent of advances in medicine and technology. How to apply the early distinction of ordinary-extraordinary means to issues like oxygen and feeding tubes, especially with permanently unconscious patients became hotly debated as early as the 1950s. Jesuit moralist Gerald Kelly was one of the first to examine this issue critically. He defined ordinary means of preserving life as “all medicines, treatments, and operations, which offer a reasonable hope of benefit for the patient and which can be obtained and used without excessive expense, pain, or other inconvenience.” Extraordinary means would be “all medicines, treatments, and operations, which cannot be obtained or used without excessive expense, pain, or other inconvenience, or which, if used, would not offer a reasonable hope of benefit” (Kelly, Medico-Moral Problems, 1957). The distinctive element of Kelly’s interpretation is that it is a patient-centered, quality-of-life approach which is consistent with how the 16th-century-Dominican moralists viewed this distinction. Kelly concludes that no person is morally obligated to use any means, and this would include natural or artificial means, that does not offer a reasonable hope of ameliorating the patient’s condition.

A contemporary understanding of the ordinary-extraordinary means distinction was given in the 1980 Congregation for the Doctrine of the Faiths’ Declaration on Euthanasia. The Declaration follows the tradition on the ordinary-extraordinary means distinction since the 16th century, which is based on the effect of the treatment on the patient or those responsible for the care of the patient. The Declaration reminds us of the duty one has to care for one’s own life and to seek such care for others. But there are limits to this obligation. One needs to judge the means used by “studying the type of treatment to be used, its degree of complexity or risk, its cost and the possibilities of using it, and comparing these elements with the result that can be expected, taking into account the state of the sick person and his or her physical and moral resources” (Congregation for the Doctrine of the Faith, “Declaration on Euthanasia,” 1980). The Declaration goes on to give four examples: patients are permitted to use experimental, advanced medical techniques, which may be a service to humanity; patients may interrupt treatments if they fall short of expectations; the refusal of a technique that is in use and carries a risk or is burdensome is not equivalent to suicide; finally, when death is imminent in spite of the means used, it is permitted in conscience to make the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted (Congregation for the Doctrine of the Faith, 1980). Finally, the Congregation for the Doctrine of the Faith reflects the traditional teaching when it writes: “Life is a gift from God, and on the other hand death is unavoidable; it is necessary, therefore, that we, without in any way hastening the hour of death, should be able to accept it with full responsibility and dignity” (Congregation for the Doctrine of the Faith, 1980). The only real change is that the document realizes that the terms ordinary and extraordinary are imprecise as terms in regards to the rapid advancement of medicine and technology. More precise terms would be proportionate and disproportionate (Congregation for the Doctrine of the Faith, 1980).

The U. S. Conference of Catholic Bishop’s fourth edition of the Ethical and Religious Directives for Catholic Health Care Services (ERDs) provide authoritative ethical guidance for all those working in Catholic Health Care facilities. The introduction to Part 6 states the more restrictive standard: “These statements agree that hydration and nutrition are not morally obligatory either when they bring no comfort to a person who is imminently dying or when they cannot be assimilated by the person’s body” (United States Catholic Conference of Bishops, Introduction-Part 6, 2001). Directive 58 states clearly that, “There should be a presumption in favor of providing nutrition and hydration to all patients, including patients who require medically assisted nutrition and hydration, as long as this is of sufficient benefit to outweigh the burdens involved to the patient” (United States Catholic Conference of Bishops, 2001). This directive follows the traditional understanding of the ordinary-extraordinary means distinction, in which the benefits-burdens are understood broadly relative to the patient.